GILDA R. MONTEROSSO & another [Note 1] vs. ROLAND J. GAUDETTE & others. [Note 2]

GREANEY, J. The plaintiff fell and was injured in a landing off a common hallway located in a commercial building in Pittsfield leased by two stores, City Used Furniture and Eva's Corsetorium. She brought actions in negligence [Note 3] against City's sole proprietor, Roland J. Gaudette, Eva Goodman, and the building's owner, Elsie Huston. At the close of the evidence each of the defendants properly moved for a directed verdict under Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). The judge allowed Eva's and Huston's motions, denied Gaudette's, and sent the case against Gaudette to the jury by questions posed to them for a special verdict under Mass.R.Civ.P. 49 (a),

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365 Mass. 812 -813 (1974). The jury found Gaudette causally negligent but also found the plaintiff to be a trespasser. [Note 4] Based on the answers to the questions in the special verdict, the judge directed the entry of a judgment for Gaudette.

On appeal, the plaintiff claims error in (a) the allowance of Eva's and Huston's motions for directed verdicts, (b) certain instructions given to the jury with respect to Gaudette's liability, and (c) the denial of her motion for a new trial (Mass.R.Civ.P. 59[a], 365 Mass. 827 [1974]), as to all three defendants. Gaudette argues on appeal that the judge should have granted his motion for directed verdict. We hold that Gaudette's motion for a directed verdict was properly denied and that Eva's motion was properly allowed. We conclude that the evidence was sufficient to warrant the submission of the case to the jury as to the owner Huston and that there was error in the jury instructions on the question of Gaudette's liability. Accordingly, we reverse the judgments entered for Gaudette and Huston and order a new trial as to those two defendants.

1. Directed verdicts. We first take up the questions raised by the motions for directed verdicts. To frame the discussion on these issues, we summarize the evidence in the light most favorable to the plaintiff, under the familiar standard that if there exists "anywhere in the entire evidence any set of circumstances that will support a reasonable inference in favor of the plaintiff," Mazzaferro v. Dupuis, 321 Mass. 718 , 719 (1947); Campbell v. Romanos, 346 Mass. 361 , 365 (1963), the motion must be denied. Becker's Inc. v. Breyare, 361 Mass. 117 , 121 (1972).

Huston owned a commercial building in which she leased space to two stores, City Used Furniture and Eva's

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Corsetorium. In addition to their main entrances, both stores provided access to their customers from the rear parking lot by means of a back door which opened into a central hallway leading to both stores. Customers were invited to use this rear entrance by advertising signs indicating the presence of both enterprises, and would find the back door unlocked during the hours that either store was open for business. The central hallway was approximately thirty-two feet long and six feet wide, with two light fixtures in the ceiling. Entrances to the two stores were at the end of the hallway as one entered from the parking lot. From this perspective, Gaudette's door was to the left and Eva's was to the right of the hallway. Before reaching either store, a customer would pass several unmarked doors and openings as follows: to the right was a trap door which led to Eva's portion of the basement, and a door which led to a bathroom used by Eva's, which was always locked; immediately to the left as one entered the hall from the parking lot was an opening to a landing area, which was shielded only by a drape drawn across it. The landing area, one step down from the hallway, led to an open stairway descending to Gaudette's portion of the basement. The landing area was unlit, although a light in the basement could be turned on by a switch on the inside wall at the top of the stairs. Directly opposite the opening from the hallway, a step up from the landing, and on the same level as the hallway, was a bathroom for the use of Gaudette and his employees. The bathroom had a door and contained only a toilet. There was no sign in the hallway or on the bathroom itself indicating that it was private or that it could not be used by the public.

The plaintiff entered the building from the parking lot, on an evening when Eva's was open but City was closed, for the purpose of purchasing an undergarment at Eva's. Although she had stopped at Eva's on a previous occasion, she had never used the back entrance. As she walked into the corridor, she noticed Gaudette's bathroom immediately

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to her left, observing a "porcelain fixture" visible from the dimly lit hallway. She does not remember seeing a drape across the hallway opening. Because she wanted to freshen up before trying on an undergarment, she stepped into the unlit landing area, without realizing that there were steps down. She experienced "a feeling of falling," and next remembers walking in the parking lot, from whence she was transported to the hospital. An employee of Eva's retrieved the plaintiff's purse and glasses at the bottom of the stairs on Gaudette's portion of the basement and observed some blood at the base of the stairs.

The lease between Huston and Gaudette, which was introduced in evidence, leased to Gaudette the store and the basement area beneath it, and provided that Gaudette would have responsibility for repair and maintenance of the leased premises, while Huston was obligated to make all structural and major repairs. In addition, it specified that Gaudette was responsible for any changes in toilets required by State law, that he could not place signs in or on the building without Huston's written permission, and that he could install a staircase from the main store to the basement only at a place approved by Huston.

(a) Gaudette's motion for directed verdict. Gaudette argues that he was entitled to a directed verdict because there was no evidence that the landing area where the plaintiff fell, or the bathroom itself, was either leased to him or was otherwise under his control. For this proposition he relies upon King v. G & M Realty Corp., 373 Mass. 658 , 662 n.8 (1977), which quotes with approval Restatement (Second) of Property -- Landlord and Tenant Section 17.3 (1977). That section provides in pertinent part that "[a] landlord who leases a part of his property and retains in his own control any other part the tenant is entitled to use as appurtenant to the part leased to him, is subject to liability to his tenant and others lawfully upon the leased property . . . for physical harm caused by a dangerous

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condition upon that part of the leased property retained in the landlord's control, if the landlord by the exercise of reasonable care could have: (1) discovered the condition and the unreasonable risk involved therein; and (2) made the condition safe." Drawing on this language, Gaudette claims that the landlord, Huston, was in control of the landing area and, as a consequence, that she was solely responsible for any injuries to third persons that might occur as a result of the dangerous condition on the premises. We disagree.

Generally stated, a landlord is under "a common duty of reasonable care . . . to all lawful visitors" on premises within his control. Mounsey v. Ellard, 363 Mass. 693 , 707 (1973). But the scope of this general proposition as to the landlord's liability does not operate automatically to relieve a tenant of his duty to warn persons of dangerous conditions within his knowledge in areas appurtenant to his premises where those conditions foreseeably could cause harm to persons lawfully in such areas. The point that the landlord and the tenant may share joint responsibility in such circumstances is succinctly made by Comment (e) of the same section of the Restatement quoted above, which provides as follows: "e. Effect of tenant's knowledge of dangerous condition. The rule stated in this section applies to subject the landlord to liability to third persons entering the leased property, irrespective of whether the tenant knows or does not know of the dangerous condition. The tenant may, for example, know that the common entrance to the apartment or office he has leased has become dangerous for use because of the landlord's failure to maintain it in a safe condition. [The tenant's] knowledge may subject him to liability to his own licensees if he fails to warn them of the danger [emphasis supplied] . . . ." The judge correctly ruled that the evidence presented a jury question on the plaintiff's theory that Gaudette may have negligently failed to warn third persons of a potentially dangerous condition which might cause foreseeable harm with regard to the area of

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the landing adjacent to his bathroom and his portion of the basement.

There was also sufficient evidence for jury consideration of whether Gaudette exercised control over the landing area and the bathroom. The lease provided that Gaudette was required to repair and replace the toilet if necessitated by State law; it also gave him the right to construct a stairway to his portion of the basement. The evidence indicated that the bathroom was provided for, and was used principally by, Gaudette and his employees. The landing area was an integral part of premises leased to Gaudette, and under the circumstances it was correct to place before the jury the issue of Gaudette's obligation to maintain premises under his control in a reasonably safe condition. Restatement (Second) of Torts Section 328C (1965). Mounsey v. Ellard, supra. Crowell v. McCaffrey, 377 Mass. 443 , 444 (1979).

Gaudette finally argues that he was entitled to a directed verdict because as a matter of law the plaintiff was a trespasser as to him when she left the hallway and entered the landing area. He arrives at this conclusion on the basis of the evidence that Eva's was the only store open, that the plaintiff had been there previously and knew that Eva's store was on the opposite side of the hallway from the bathroom, that the bathroom was for the private use of Gaudette and his employees only, that he usually made sure the curtain was closed, and that he remembers specifically that it was closed on the night in question. [Note 5]

A determination as a matter of law that a person is a trespasser can be made only where the uncontroverted facts will admit of no other conclusion. See Mounsey v. Ellard, 363 Mass. at 707 n.7. This is not such a case. By definition "a trespasser is a person who enters or remains

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upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise." Restatement (Second) of Torts Section 329 (1965). He is in brief someone who lacks any right at all to be on another's property. There was evidence from which the jury could have found that Gaudette or his employees left the hallway curtain open on an evening when they knew that customers of Eva's would use the rear entrance, that the bathroom was not labelled "private" or otherwise marked out of bounds, and that Eva's bathroom was locked and unmarked. The judge correctly rejected the argument that the plaintiff was a trespasser as a matter of law because the evidence was sufficient to warrant jury consideration of the question whether her presence in the landing and bathroom area was lawful in that she had reason to believe that she could enter if she so desired.

(b) Eva's motion for directed verdict. The plaintiff argues that the judge should not have allowed Eva's motion for directed verdict because there was "sufficient evidence of control by [Eva's] of the hallway out of which arose a duty of care to warn or protect plaintiff, a lawful visitor on the hallway, against dangerous conditions existing immediately adjacent to it because it was foreseeable that she would deviate from the hallway to use the bathroom." In support of this argument, she directs our attention to two ancient precedents, Learoyd v. Godfrey, 138 Mass. 315 (1885) (finding of liability warranted when an invitee fell into a well within the area that he was invited to use), and Barnes v. Chicopee, 138 Mass. 67 (1884) (finding of no liability when an injury occurred as the result of a dangerous condition located thirty-four feet from a travelled way). These venerable cases are not relevant to the circumstances of this action. Placing them aside, it appears that the plaintiff has launched two theories against Eva: (1) that the use of the hallway itself was made dangerous by reason of the existence of an unsafe condition closely proximate to the hallway, and (2) that Eva had a duty similar to Gaudette's to warn her of hazards

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in areas appurtenant to the premises leased to Eva. The plaintiff was not entitled to go to the jury on either proposition.

There was no evidence from which the jury could have concluded that the hallway itself was made dangerous by reason of the landing area. The hallway was safe for passage and remained so without regard to the landing area, and it is undisputed that the accident occurred in the landing area, not in the hallway. Furthermore, the contention that the landing area was appurtenant to premises leased to Eva neglects consideration of the important fact that occupation and control of portions of this building were divided among two tenants and the owner. Eva did not have any control of, or right to maintain or use, the landing area. That area was appurtenant to, or a part of, the premises leased to Gaudette; it was not appurtenant to or a part of the premises leased to Eva. The duty of a tenant to warn of, or correct a dangerous condition known to him is based on the assumption that the tenant either has control over the area where the condition exists or has the right to use that area. See, e.g., discussion and illustrations in Restatement (Second) of Property -- Landlord and Tenant Section 17.3, Comment (e) (1977). Eva neither had control over, nor the right to use, the landing area, and as a result, she lacked the authority to enter the landing or the adjacent bathroom to correct the unsafe condition. She also lacked the right to post warning signs or signals in the hallway as to the presence of the dangerous condition off the common hallway. The question of a duty on Eva's part is linked directly to her ability to remedy the conditions complained of. Because Eva did not use or possess, or have the right to use or possess, the landing, and because there was no evidence that the landing was a common area, the judge correctly ruled that the calculus of responsibility would neither impose a duty on Eva to correct the unsafe condition nor require her to warn about it. [Note 6]

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(c) Huston's motion for directed verdict. The evidence as to Huston was sufficient to require submission of the case against her to the jury. It could have been found that she retained a measure of control over the landing area and the bathroom and that the lease made her responsible for structural repairs. Any efforts to make the landing safe, such as raising it to the level of the bathroom and the hallway, installing a light, or constructing a door to close it off from the hallway would have been within Huston's responsibility under the lease. Even the installation of a warning sign would, under the lease, have had to meet with Huston's prior approval. On the evidence, it was for the jury to determine whether Huston had maintained the premises in a reasonably safe condition under all the circumstances. Restatement (Second) of Torts Section 328C (1965). Crowell v. McCaffrey, 377 Mass. at 444.

2. Jury instructions. The plaintiff questions the propriety of the judge's instructions as to her status with regard to the landing area. The judge read to the jury lengthy excerpts from Mounsey v. Ellard, supra, interspersed with his own explanations of the terminology. He indicated to the jury that "we no longer follow the common law distinctions between licensees and invitees . . .," id. at 707, and that the appropriate standard for their consideration was "the foreseeability of the visitor's presence and the time, manner, place and surrounding circumstances of his entry . . . ." Id. at 708-709. These portions of the instructions were all quite proper. However, throughout the instructions on the law of the case, the judge also informed the jury that if the plaintiff lacked an invitation, express or implied, to be upon the landing area, then she would be a trespasser entitled to recover only upon a showing of wilful, wanton, or reckless conduct on Gaudette's

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part. [Note 7] We conclude that it was improper in this case to formulate the question of the plaintiff's presence in terms of the mutually exclusive categories, of an "invitee" on the one hand or a "trespasser" on the other. The instructions and the second special question tied the lawfulness of the visit to an invitation; but the evidence clearly opened a middle ground as to the plaintiff's presence, that of someone who was privileged to enter the area within another's control by virtue of the occupant's conduct providing her with reason to believe that she could enter if she so desired. In such circumstances, the occupant would owe a duty to correct or warn of dangerous conditions which the person lawfully on the premises would not observe and avoid. In the old parlance this would have led to the plaintiff's being considered a "licensee,"

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a presence which has been explicated by the Restatement as follows: "An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so." Restatement (Second) of Torts Section 332, Comment b (1965). Since Mounsey, instructions should be designed to frame the analysis of the issues before the jury apart from the definitional subtleties of status classifications because "the status question often prevents the jury from ever determining the fundamental question whether the defendant has acted reasonably in light of all the circumstances in the particular case." Mounsey, supra at 707. An instruction which fails clearly and fully to inform the jury of the "significant difference in the legal status of one who trespasses on another's land as opposed to one who is on the land under some color of right" (id. at 707 n.7) is misleading. The plaintiff adequately saved her rights to a correct instruction, as to the distinction still operative in our case law between someone lawfully present and an adult trespasser [Note 8] to the extent that the distinction was required to settle the issues in the case. The instruction given did not adequately explain this difference and as a result was erroneous.

3. Evidentiary problem. One evidentiary issue is likely to recur at the retrial. The plaintiff objected to the judge's exclusion of certain evidence sought to be elicited from Gaudette as to the identity of the person or persons maintaining the lighting in the hallway. The offered evidence was rightly excluded because control of the hallway was not otherwise relevant to the duty owed by the various defendants towards the plaintiff, and because there was

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more than ample evidence in the case to supply the jury with the circumstances of the use of the hallway as they related to the obligations of the defendants to exercise reasonable care for her safety. [Note 9]

In summary, the plaintiff's evidence was sufficient to enable the jury to consider whether Gaudette and Huston had discharged the duty imposed on occupants of premises to maintain those premises in a reasonably safe condition for persons lawfully thereon. The evidence did not present such a question as to Eva. At the retrial, the formulation of the instructions should, to the extent that labeling becomes necessary, adequately explain the distinction between someone who is lawfully present on the premises and someone who is a trespasser.

The judgment entered for the defendant Eva is affirmed. The order denying Gaudette's motion for a directed verdict is affirmed. The judgments entered for Gaudette and Huston are reversed and the case is remanded for a new trial as to those two defendants.

So ordered.