361 Mass. 848

February 3, 1972

The United States Fidelity and Guaranty Company appeals from a final decree awarding compensation to the employee for personal injury sustained on February 9, 1967, and dismissing a claim against the Liberty Mutual Insurance Company. The final decree was in accord with the decision of the reviewing board which adopted and affirmed the findings and decision of the single member. We find no error. The employee had previously suffered a back injury on May 18, 1960, while employed by Vappi and Company, Incorporated, and was compensated by the Liberty Mutual Insurance Company. The single member could have found on the testimony of a physician evidence sufficient to warrant the finding that the new back injury occurred while the employee was working for the Petrucelli Construction Company for which the United States Fidelity and Guaranty Company, the insurer at that time, was liable. This is a case of two compensable injuries. The insurer covering the risk of that more recent injury which is causally related to the employee's disability is liable for the entire compensation for the current injury. See Fitzpatrick's Case, 331 Mass. 298, 300.

Decree affirmed.

Home PETER POPOWYCH vs. SUMNER L. POORVU & another, trustees.

361 Mass. 848

February 4, 1972

The defendants, as trustees, leased two floors of a building to Popowych's employer (the tenant). Burton Cone, an employee of the tenant, prior to August 10, 1967, notified the trustees' maintenance man that a window on the fifth floor required repairs lest it fall into the street. On August 10, two maintenance employees removed the window from its frame. Popowych, who was working on the same floor, was aware of their presence. About noon, these two men left, taking the window with them but leaving a stepladder. Popowych later fell on a round hard object and was injured. Cone saw debris (including window stops, ropes, and screws) left on the floor by the trustees' employees. The latter did not return prior to Popowych's fall. The window had been replaced by 8 P.M. that evening. The judge, subject to the trustees' exception, refused (a) to direct a verdict for the trustees and (b) to charge that the standard of care to Popowych by the trustees with respect to any debris left by their employees was the avoidance of gross negligence. The judge correctly charged that the trustees were under no duty to the tenant

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to repair the window, and that, if they did so, they would be liable only for their employees' gross negligence. In addition, however, he charged in effect that the trustees would be liable for any ordinary negligence of their employees in leaving debris on the floor. In the opinion of a majority of the court, this was error. There was no evidence of gross negligence. The case is governed by Ryan v. Boston Housing Authy. 322 Mass. 299, 300, and Barrett v. Wood Realty Inc. 334 Mass. 370, 372-376, where (pp. 372-373) the plaintiff was injured by a fall on wet debris some four hours after a landlord's employee had completed repairs. Here the window repairs had not been completed and the window had not been replaced. See Collins v. Goodrich, 324 Mass. 251, 252-254. Compare Peay v. Reidy, 321 Mass. 455, 458 (negligence with respect to common elevator by landlord's employee). The evidence did not warrant the conclusion that the trustees' employees were trespassers on the demised premises, even if the trustees were making the repairs in part for their own benefit to avoid the risk of injury to persons on the street.

Exceptions sustained.

Judgment for the defendants.