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November 16, 1977


Suffolk. Tort. Writ in the Superior Court dated May 9, 1968. On transfer to the Municipal Court of the City of Boston and retransfer to the Superior Court, the action was tried before Mitchell, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Kaplan, Liacos, & Abrams, JJ.


Negligence, One owning or controlling real estate. Landlord and Tenant, Common stairway, Landlord's liability to tenant or one having his rights, Tenancy at will, Tenancy at sufferance.

The opinion of the court was delivered by: Kaplan

A landlord owes a duty of reasonable care in maintaining areas retained under his control to a tenant regardless of the condition of the areas at the time of the letting. [660-662]

The nature of a tenancy with respect to a landlord's tort liability was not altered by the tenant's receipt of a notice to quit under the provisions of G. L. c. 186, § 12. [663-664]

Upon trial in the Superior Court in February, 1976, the plaintiff Barbara King won a verdict and judgment against the defendant G & M Realty Corporation on the ground of the defendant's negligence.

The plaintiff testified that in April, 1968, she was the tenant with her four children in a first-floor apartment at 57 Templeton Street, in the Dorchester district of Boston. A rear stairway served all six apartments of the three-story building. At 7:30 A.M. on April 26, 1968, *fn1 the plaintiff, carrying rubbish from her apartment, started to go down the stairs from the first floor. A top stair had sprung loose. A nail protruded from it. The plaintiff's slipper caught on the nail and she fell down the stairs onto a cement walk at street level, suffering injuries. A railing that she might have seized to prevent or break the fall was "gone."

The plaintiff said that over a period of some months preceding the accident she had complained repeatedly to the defendant, owner of the building, about the condition of the stairs, but it had not done anything about it. She also testified that the stairs had been in satisfactory condition in 1963, when she first moved into the apartment.

On cross-examination, the defendant suggested that there was contributory negligence in that the plaintiff, knowing as she stated that the stairs were defective, had used them rather than the front stairs available from all the apartments. The plaintiff admitted receiving from the defendant on April 15 a written fourteen-day notice to quit for failure to pay rent. She continued living in the apartment and caught up with rent arrears in June. She moved elsewhere, voluntarily, sometime in the fall of 1968.

On this appeal *fn2 the defendant argues that the Judge should have granted its motion for judgment *fn3 for the principal reason that, upon receipt of the notice to quit on April 15, the plaintiff became a tenant "at sufferance," and thereupon was owed a duty on the defendant's part only to refrain from wilful or wanton conduct in respect to maintaining the safety of the common stairway. The defendant also excepted to the Judge's instruction to the jury which cast on the defendant a general, continuing duty toward the plaintiff to exercise reasonable care in keeping the stairway in safe condition.

1. It is convenient first to consider the case apart from the question of the effect of the notice to quit. In the past it was the law of the Commonwealth that a landlord had no general obligation to exercise reasonable care in keeping safe the common areas of an apartment building or similar structure for use by his tenants and their visitors. Rather he was under a separate and limited duty toward each tenant and that tenant's visitors to exercise reasonable care to maintain the common areas in a condition not less safe than they were, or appeared to be in, at the time of the letting to the particular tenant. See McCarthy v. Isenberg Bros., 321 Mass. 170, 172 (1947); Mirick v. Galligan, 372 Mass. 146, 148, 149 (1977). This was a singular Massachusetts rule; the "weight of authority" was otherwise and imposed on the landlord the general, continuing duty mentioned. *fn4 In Lindsey v. Massios, 372 Mass. 79, 82 (1977), we repented of one phase, at least, of our old rule and joined the current of authority in a situation where it was a guest of a tenant who was suing the landlord for an injury suffered through the negligent maintenance of a common stairway. We saw this result as a corollary of a series of decisions since Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973), *fn5 and relied in particular on the policy underlying Mounsey v. Ellard, 363 Mass. 693 (1973), which, as we said in Lindsey, announced "a new rule that occupiers owe a duty of reasonable care to all lawful visitors without regard to their common law status as invitees or licensees." Id. at 82. With respect to areas retained in the landlord's control, the landlord may be viewed as in effect an "occupier."

The Lindsey decision left open the case where the tenant, rather than the guest, was the injured party suing the landlord. See the reservation in Lindsey at 82 n.2; also Mirick, supra at 148. The present case is the one reserved. We think the measure of the landlord's responsibility to the tenant with respect to common areas left in the landlord's control should not differ in kind from that owed by the landlord to the tenant's visitors. A contrary view creating dual standards of care by distinguishing the tenant from the visitor, and fixing the landlord's duty to the former in relation to conditions at the time of letting, would place just that undue emphasis on the "conveyance" and "caveat emptor" aspects of a lease which we were at pains to criticize in the Hemingway case. *fn6 In the present context the tenant is not different from the visitor except as he may the more readily have or be chargeable with knowledge of a dangerous condition of a common area -- a factor bearing on contributory negligence. We add here the several practical considerations arising from the situation of residential tenants that lead us to favor the application to them of the rule which now prevails in this country as against the rule earlier recognized in the Commonwealth. "Besides the inherent difficulties of trying to determine in retrospect the condition of the area in question as of the beginning of the tenancy [as noted, the tenancy in the present case began thirteen years before trial], the 'Massachusetts rule' is unfair to tenants who might be unaware of the true condition of the areas retained under the landlord's control. Furthermore, if the tenant becomes aware of a pre-existing dangerous condition after the tenancy has begun, he has no recourse against the landlord to force repairs and must bear the expense and consequences of any resulting injury. *fn7 The landlord should not be allowed to remain in such a position that he has no incentive to maintain the areas retained under his control in reasonably safe condition. . . . he point in time at which the dangerous condition came into existence is only important as a factor in determining whether the landlord could have discovered the condition by the exercise of reasonable care and whether he has had a reasonable time to make it safe." *fn8

2. The trial Judge was thus correct in charging the jury as he did. *fn9 There was no basis for allowing the motion for judgment, questions of negligence and contributory negligence being plainly for the jury, unless the notice of April 15 should alter the result. It is suggested that from that day forward the plaintiff lost her status as a tenant at will and, becoming a tenant at sufferance, should enjoy not even the rights of a lawful visitor. We think it would make sense to read the statute under which the notice was given, G. L. c. 186, § 12, *fn10 as not "determining" the original tenancy for the present purpose -- i.e., as not altering the nature of the tenancy with respect to the tort obligation -- until the lapse of the fourteen days (the rent due not having been paid by the fifth day). *fn11 We need not rest on the circumstance that here the notice evidently had only a minatory purpose; it was not followed up, as far as appears, by legal action on the part of the landlord, and the rent was in fact finally made good. But if ยง 12 should be interpreted differently, and the original tenancy is taken to have ended on receipt of the notice (or on the fifth day thereafter), we would hesitate to say that the tenant became thereby the equivalent of a trespasser with narrow rights. Cf. Mounsey v. Ellard, 363 Mass. 693, at 707 n.7 (1973); but cf. Kaplan, J., Concurring, at 717. As the tenant could remain on the premises for fourteen days safe from dispossession, we would suppose, by reference to ...

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