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11/17/77 GARY S. MARKARIAN & ANOTHER v. SARAH

November 17, 1977

GARY S. MARKARIAN & ANOTHER
v.
SARAH CHAVOOR SIMONIAN & ANOTHER, TRUSTEES



Worcester. Tort. Writ in the Superior Court dated June 28, 1966. The case was tried before John P. Sullivan, 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, Braucher, Kaplan, & Liacos, JJ.

SYLLABUS BY THE COURT

Landlord and Tenant, Repairs, Landlord's liability to tenant or one having his rights. Negligence, One owning or controlling real estate, Repairs. Agency, What constitutes.

The opinion of the court was delivered by: Liacos

In an action of tort by a tenant and his minor child for the alleged negligent installation by the mother of the defendant landlords of a screen in the low kitchen window of the apartment rented, through which the child fell and was injured, evidence warranted findings that the defendants' parents, the original owners, had made an agreement with the adult plaintiff at the commencement of the tenancy to do repairs on the premises, and that the agreement applied at the time of the accident six years later [673]; a Conclusion that the parents of the defendants acted as their agents was warranted by evidence that the parents were actively engaged in the management of the premises to the knowledge of the defendants, and that they adopted and acquiesced in actions of their parents with respect to leasing agreements [673-674].

In an action for injuries sustained by the plaintiff child when he fell out of the low kitchen window of his family's apartment as he was attempting to sit on the window sill and the screen "burst" open from the bottom, evidence that an agent of the defendant landlords, pursuant to a repair agreement with the adult plaintiff, recently installed a new screen narrower than the original screen, which had been installed in a secure manner, that the agent bent out the screen runners to a forty-five degree angle, and that she said she was repairing the window so that it would be safe would have warranted a finding of negligence in the installation of the new screen for which the defendants were liable. [674-676]

On June 28, 1966, Gary Markarian, the minor plaintiff, and his father, commenced an action in tort in the Superior Court in the county of Worcester. An amended declaration, filed on January 29, 1968, contained four counts; two sought damages for injuries suffered by the minor plaintiff on the basis that the defendants had been negligent in the maintenance of residential premises in which the minor plaintiff resided with his family, and the other two sought damages on the theory that the defendants were negligent in making repairs to those same premises. At the close of the evidence the defendants' motion for a directed verdict on all counts was allowed. The plaintiffs appealed to the Appeals Court on a bill of exceptions which contains all the facts necessary to resolve the appeal. We transferred the case here on our own motion.

The facts viewed in the light most favorable to the plaintiffs *fn1 show that the injuries complained of took place in a dwelling house originally owned by the parents of the defendants. In 1949 the defendants' parents conveyed the property to a trust of which the defendants Sarah Chavoor Simonian and Jacob Chavoor were trustees. There was evidence from which the jury could conclude that the parents continued to take an active role in the maintenance and management of the property despite this conveyance. There was evidence to suggest that the parents made the arrangements with new tenants and that part of these arrangements included an agreement to make repairs. The father of the minor plaintiff testified that he and his family moved into the premises in question in 1959, pursuant to an agreement made with the defendants' father and that the terms of the agreement included the making of repairs by the defendants' parents. Mrs. Simonian acknowledged that her parents had made such representations.

The minor plaintiff was injured when he fell through a window screen which, allegedly, had been negligently installed by the defendants' mother. There was evidence from which the jury could conclude that in June, 1965, Mrs. Simonian's mother, Annie Chavoor, responded to a complaint from the Markarians by undertaking to remedy a problem with the kitchen window in the premises occupied by the Markarians. It could be found that Mrs. Chavoor, in the process of making the necessary repairs, caused the screen which had previously been in the window to be knocked out of the runners in which it had been held and that as a result of this occurrence the runners were bent out at a forty-five degree angle from their usual position. Further evidence presented would have allowed the jury to conclude that Mrs. Chavoor then replaced the screen with a new screen which was of a narrower width than the original. The window measured thirty-two inches wide while the new screen measured thirty and one-half inches wide. The jury could further have found that narrower replacement screens had been installed in the other apartments in the building but that new runners had been provided in those other apartments to accommodate the narrower width of the new screen. *fn2

After this repair was made Gary Markarian, the minor plaintiff, then two years old was playing in the kitchen. According to testimony, Gary went near the window, put his hands on the window sill which was close to the floor, put one knee in the same location and in the process of attempting to assume what appeared to be a sitting position brought his shoulders in contact with the screen which thereupon "burst" open from the bottom. Gary fell two stories to the ground.

At the trial the plaintiffs presented expert testimony with regard to the runners. The plaintiffs asked each expert whether the runners in their bent condition could properly hold the replacement screen. Each expert was asked also whether he had an opinion as to what caused the runners to become bent. On objection, the Judge excluded these questions. The plaintiffs excepted and made an offer of proof to the effect that the runners could not hold the screen due to the bending out of the outer edge, and that the slightest pressure would cause the screen to pop out. The plaintiffs also offered to prove that the outer edges probably were bent due to blows by a hammer on the original screen by Mrs. Chavoor during the course of the repair to the window in question. *fn3

At the close of this evidence the Judge granted the defendants' motion for a directed verdict. The plaintiffs appeal from that ruling as well as the Judge's exclusion of the expert testimony.

1. It has been well settled in this Commonwealth that in the absence of an agreement imposing a duty on the landlord to keep the premises in a condition of safety, the landlord is not liable in tort to a tenant for injuries suffered by a tenant for a failure to execute such repairs. DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 513 (1974). Conahan v. Fisher, 233 Mass. 234, 237-238 (1919). A distinction has been made between such agreements, which imply access by the landlord to the property to ensure its safe condition, and ordinary agreements to make repairs, which are construed as requiring the tenant to give the landlord notice of a dangerous condition. DiMarzo v. S. & P. Realty Corp., supra. While a tenant may not recover in tort for the failure of a landlord to effectuate requested repairs under an ordinary repair agreement, a tenant may recover for injuries suffered as a result of repairs effectuated in a negligent manner. Id. Koleshinski v. David, 328 Mass. 276, 279 (1952). On the other hand, if repairs are undertaken gratuitously, in the absence of a valid agreement, the plaintiff must prove and establish gross negligence in the effectuation of the repair in order to recover. Carney v. Bereault, 348 Mass. 502, 508 (1965).

Since the plaintiffs' declaration was grounded on ordinary negligence, their success on the merits, aside from the issue of the sufficiency of the evidence on the issue of negligence itself, depends on whether there was sufficient evidence to find that there existed an agreement between the ...


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