Wilson v. Boston Redevelopment Authority

• Decision Date: 06 January 1975
• Citation: Wilson v. Boston Redevelopment Authority, 321 N.E.2d 819, 366 Mass. 588 (Mass. 1975)
• Parties: Clark W. WILSON v. BOSTON REDEVELOPMENT AUTHORITY et al.
• Court: Supreme Judicial Court of Massachusetts

Page 819

321 N.E.2d 819

366 Mass. 588

Clark W. WILSON v. BOSTON REDEVELOPMENT AUTHORITY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 9, 1974.

Decided Jan. 6, 1975.

Frank T. Barber, III, Boston, for plaintiff.

William H. Shaughneyssy, Boston, for the Boston Redevelopment Authority.

Before REARDON, QUIRICO, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

This is an action in tort brought by the plaintiff to recover for personal injuries sustained by him when he fell into an elevator shaft after the grate or screen positioned over the shaft gave way. The premises were owned by the Boston Redevelopment Authority (B.R.A.). The declaration was in three cournts: the first count was against the B.R.A.; the second count was against the defendant Sam Shore as tenant, in part, of the premises in question; the third count named Alan I. Shore as a defendant.

The jury returned verdicts for the defendants B.R.A. and Sam Shore on counts 1 and 2. However, the jury found for the plaintiff against the defendant Alan I. Shore on count 3 in the amount of $26,500.

The case is before us on the plaintiff's bill of exceptions, which was originally entered in the Appeals Court. The single issue raised by the bill relates to that portion of the trial judge's charge to the jury defining the duty of care owed to the plaintiff by the defendant B.R.A. The Appeals Court overruled the plaintiff's exception. WILSON V. BOSTON REDEVELOPMENT AUTHY., --- MASS.APP. ---, 307 N.E.2D 21 (1974)^A. We granted the plaintiff's petition for further appellate review. We conclude that there was error in the charge.

The evidence may be summarized as follows. The defendant Sam Shore had for approximately thirty-five years conducted an egg business at 93--99 Fulton Street Boston. On September 27, 1965, that property was taken in an eminent domain proceeding by the B.R.A. On April 20, 1966, the tenancy was transferred in name from Sam Shore to Alan I. Shore with the approval of the B.R.A. Under an oral tenancy, Alan I. Shore was to occupy the first and second floors only. However, Alan I. Shroe did apparently have use of the elevator. The operating equipment for the elevator was located in a 'penthouse' at the top of the elevator shaft. At the time of the accident the elevator was not working. Consequently, Sam Shore, who was working for his son, contacted the George T. McLauthlin Company and the plaintiff was sent to repair the elevator. ¹

Following a preliminary inspection, the plaintiff proceeded to the penthouse to check the electrical equipment housed there. He first checked certain fuses and switches and then moved to the rear of the enclosure, as he testified, to check the slack cable switch. In so moving, he stepped on the grate which covered the elevator shaft. The triangular grate, not fastened by bolts or otherwise, was merely positioned on the shaft. On two sides it was supported against the brickwork of the building; on the third side it lay on an I-beam arrangement. When the plaintiff stepped on the grate, it gave way beneath him and he fell into the shaft, sustaining injury.

In a relatively long and comprehensive instruction, the trial judge charged the jury as to the legal effect of a taking by eminent domain; the legal implications of a tenancy at sufferance as opposed to a tenancy at will; the status of an invitee of a tenant; and the law of negligence including proximate cause, contributory negligence, and damages.

The judge's further instructions permitted the jury to consider whether the B.R.A. was in control of the elevator penthouse where the accident occurred; whether the tenant was one or the other of the Shores; whether the tenancy was a tenancy at will; and whether the plaintiff was working in the penthouse as an invitee of the tenant at will. ² In addition, the charge stated that if all of the foregoing facts were found, then the B.R.A. was under a duty to exercise reasonable care to see to it that the plaintiff was not injured. ³

The plaintiff's single exception arises out of the judge's language in defining the B.R.A.'s duty of reasonable care owed to the plaintiff in the event that the jury found the B.R.A. to be in control. The judge stated specifically that the B.R.A had a duty to warn the plaintiff of dangers known to the B.R.A. which were not open and obvious. The plaintiff's exception concerns the additional instruction: 'There was no duty . . . to make . . . physical changes in the property or in the pent house or in the elevator or in the grate; no duty to make physical changes. A person coming on the premises as a business invitee, if he's been invited to come to that particular place, that particular spot where the accident occurred, takes it as he finds it; no obligation to change the construction or to change the method of doing business.'

The B.R.A. argues that we should consider the charge as a whole and that taken as a whole the charge correctly stated the applicable law. We, of course, agree that a charge is to be examined in its totality to determine whether it is a clear and accurate statement of the law. Gilchrist v. Boston Elev. Ry., 272 Mass. 346, 172 N.E. 349 (1930); Haven v. Brimfield, 345 Mass. 529, 188 N.E.2d 574 (1963); Washington v. Sullivan, 357 Mass. 766, 258 N.E.2d 30 (1970). However, where a portion of the charge incorrectly states the applicable law, the accuracy of the charge as a whole may be...