CARROLL ELIZABETH YOUNG vs. MITCHELL GARWACKI & another.

LIACOS, J. On August 3, 1977, the plaintiff Young commenced this action in the Superior Court in Hampden County against the defendants Garwacki (tenant) and Kenneth N. LaFreniere (landlord). The complaint stated two counts of negligence, one against the tenant and the other

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against the landlord, in which Young sought damages for personal injuries sustained in a fall from the second-story front porch of the tenant's apartment. Young alleged that she was lawfully on the premises and that the railing had been negligently maintained. The case was tried to a jury which found for the plaintiff on both counts and returned answers to special questions on September 21, 1978. Mass. R. Civ. P. 49 (a), 365 Mass. 812 (1974). The landlord then filed a motion for judgment notwithstanding the verdict. Mass. R. Civ. P. 50 (b), 365 Mass. 814 (1974). On September 28, the trial judge filed a memorandum and order. He entered judgment for Young against the tenant for $20,000; no appeal has been taken by the tenant. On October 3, he allowed the landlord's motion for judgment notwithstanding the verdict. The plaintiff filed notice of appeal. On January 26, 1979, the judge reported the case against the landlord to the Appeals Court. Mass. R. Civ. P. 64, 365 Mass. 831 (1974). We brought the case here on our own motion. We reverse.

The facts as stated in the judge's report show the following. The accident occurred on the landlord's property at 7 Park Street in Westfield. Garwacki rented the house's second-floor apartment as a tenant at will. One Larry Mastello shared the apartment with him. Mastello invited Young, a friend of both men, to a dinner party on April 21, 1977. She arrived before the other guests and began preparing the dinner. On his way to pick up a friend, Mastello went down to his car which was parked in a driveway near the front of the house. Young went to the front porch to ask him to pick up some groceries on his way back. When she placed her hands on the railing and leaned forward to call down to Mastello, the railing gave way. She fell to the ground and was injured.

In December, 1976, the landlord's insurance company had informed him that the railing was dangerous and had cancelled his liability insurance. At that time, the landlord warned the tenant of the danger and bought materials to repair the railing, but he made no repairs.

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According to the judge's report, the landlord had made no express agreement to keep the premises in repair, although he testified he considered it his obligation to repair the porch railing. Furthermore, the porch, which was accessible only from the tenant's living room, was part of the demised premises, not under the landlord's control. In answer to the judge's special questions, the jury found that the landlord did not exercise reasonable care in his maintenance of the premises, that his negligence was the proximate cause of the plaintiff's injuries, and that she was not at all negligent herself. [Note 1]

Thus, this case presents a question we have reserved before. DiMarzo v. S. & P. Realty Corp., 364 Mass. 510, 514 (1974). See Markarian v. Simonian, 373 Mass. 669 (1977). In the absence of the landlord's express agreement to keep the rented premises in repair, is he liable to his tenant's guest for injuries resulting from his negligent failure to maintain the safety of the premises?

Common law rules defining a landowner's liability in negligence to people coming onto the land reflected the needs of an agrarian society. The landowner was a petty sovereign within his boundaries. The character of his duty to an injured party varied with the party's relationship with the sovereign. Mounsey v. Ellard, 363 Mass. 693, 695 (1973). Thus, the common law distinguished several classes of tort plaintiffs; among them, trespassers, licensees, invitees, and tenants.

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The traditional approach to tenants turned on the concept of a lease as a lease as a conveyance of property. The tenant "bought" the leasehold at his peril, so he could not expect the landlord to have repaired preexisting defects, and at the time of the letting, the landlord ceded to the tenant his dominion over the rented premises. Under this ancient view, the axiom was "there is no law against letting a tumbledown house." Robbins v. Jones, 15 C.B. (N.S.) 221, 240, 143 Eng. Rep. 768, 776 (1863). The landlord might have been liable for negligent maintenance of common areas, but was not generally liable for the negligent maintenance of the premises themselves. See generally Restatement (Second) of Property, Landlord and Tenant c. 17, Introductory Note & Section 17.3 (1977); 2 R. Powell, Real Property par. 233 (at 330.69-330.70), par. 234[2][b] (P. Rohan 1977).

The landlord "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." King v. G & M Realty Corp., 373 Mass. 658, 660 (1977). Lindsey v. Massios, 372 Mass. 79, 81-82 (1977). As to the demised premises, caveat emptor reigned. The tenant took the premises as he found them. See Gade v. National Creamery Co., 324 Mass. 515, 518 (1949). "The general rule is that the landlord is not liable to the tenant for defects in the premises existing at the time of the letting unless they are hidden defects of which he is aware and does not warn the tenant." Ackarey v. Carbonaro, 320 Mass. 537, 539 (1946). The defect had to be one that was not discoverable by the tenant Cooper v. Boston Hous. Auth., 342 Mass. 38, 40 (1961). [Note 2] We set out the remaining rules in DiMarzo v. S. &

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P. Realty Corp., supra at 513. As we stated in DiMarzo, during the term of the rental, "there could be no tort liability for nonfeasance in the absence of an agreement, for consideration, that the landlord would keep the premises in a condition of safety, and make all repairs without notice. Fiorntino v. Mason, 233 Mass. 451 (1919). Jacovides v. Chaletzky, 332 Mass. 225 (1955). Bushfan v. Gluck, 339 Mass. 772 (1959). Schopen v. Rando, 343 Mass. 529 (1962). Long v. Russell, 344 Mass. 758 (1962). Gratuitous repair creates tort liability only if it is done in a grossly negligent fashion. Bergeron v. Forest, 233 Mass. 392 (1919). Barrett v. Wood Realty Inc. 334 Mass. 370 (1956). Popowych v. Poorvu, 361 Mass. 848 (1972). The ordinary agreement for consideration by which a landlord is to make repairs is construed as an agreement to repair on notice. Conahan v. Fisher, 233 Mass. 234 (1919). Fiorntino v. Mason, 233 Mass. 451 (1919). Failure to repair under such an agreement gives rise only to a contract action for the cost of the repair. Tort liability will exist, however, for negligently made repairs. In the absence of such a specific agreement to repair, no agreement will be implied from the mere letting of the premises, and any repairs made will be treated as gratuitous. Bergeron v. Forest, 233 Mass. 392 (1919)." DiMarzo v. S. & P. Realty Corp., 364 Mass. at 513.

After seven years of reconsideration and reform, little remains of this obsolete machinery of the common law. Much of the reform has been accomplished judicially. [Note 3] Recent

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decisions of this court clearly reflect . . . a shift in philosophy with regard to status distinctions in tort standards of care . . . ." Poirier v. Plymouth, 374 Mass. 206, 221 (1978). [Note 4] In Mounsey v. Ellard, 363 Mass. 693 (1973), we did away with the legal significance in tort of categories of licensee and invitee and held that a landowner owes a duty of reasonable care to all lawful visitors. We said: "The problem of allocating the costs and risks of human injury is far too complex to be decided solely by the status of the entrant, especially where 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." Id. at 707. Since Mounsey, we have eliminated other limits based on status. E.g., Soule v. Massachusetts Elec. Co., 378 Mass. 177 (1979) (foreseeable child trespasser); Poirier v. Plymouth, supra (employee of independent contractor); Pridgen v. Boston Hous. Auth., 364 Mass. 696 (1974) (helplessly trapped trespasser).

In the landlord-tenant field, we have held that a landlord is liable to a tenant's guest for failing to exercise due care in maintaining common passageways under the landlord's control without regard to their condition at the time of the letting. Lindsey v. Massios, supra. We said that "the

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status of the person visited, landowner or lessee, should not affect the visitor's right to personal safety or the landowner's obligation reasonably to maintain premises in his control." Id. at 82. In King v. G & M Realty Corp., supra, we extended the landlord's general and continuing duty to exercise reasonable care as to the safety of common passageways to include tenants as well as their visitors.

We have also attacked the theory on which the tenant's status classification depends. In the line of cases creating and applying the implied warranty of habitability, we have overthrown the doctrine of caveat emptor and the notion that a lease is a conveyance of property. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). Crowell v. McCaffrey, 377 Mass. 443 (1979). Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973). Moreover, we have invoked the doctrine of warranty to afford a tenant compensation not only for economic loss, as in Berman and Hemingway, but for personal injury. Crowell v. McCaffrey, supra at 450-453. Thus, at least to the extent required by the relevant housing and building codes, a landlord may be liable to his tenant for failing to maintain areas not under the landlord's control.

Today, we do away with the ancient law that bars a tenant's guest from recovering compensation from a landlord for injuries caused by negligent maintenance of areas rented to the tenant. Like the other rules based on status, this rule has prevented a whole class of people from raising the overriding issue: whether the landlord acted reasonably under the circumstances. The practical result of this archaic rule has been to discourage repairs of rented premises. In cases like the one before us, a landlord with knowledge of a defect has less incentive to repair it. And the tenant, who often has a short-term lease, limited funds, and limited experience dealing with such defects, will not be inclined to pay for expensive work on a place he will soon be leaving. [Note 5]

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Thus, the defect may go unrepaired until an unsuspecting plaintiff finds herself with a lawsuit that care could have prevented.

Seven years ago, in Sargent v. Ross, 113 N.H. 388, 397-398 (1973), Chief Justice Kenison wrote: "Henceforth, landlords as other persons must exercise reasonable care not to subject others to an unreasonable risk of harm. A landlord must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. We think this basic principle of responsibility for landlords as for others `best expresses the principles of justice and reasonableness upon which our law of torts is founded' " (citations omitted). Henceforth, this basic principles of responsibility applies to Massachusetts landlords as well. Accord, Brennan v. Cockrell Invs., Inc., 35 Cal. App. 3d 796 (1973); Willcox v. Hines, 100 Tenn. 538 (1898); Pagelsdorf v. Safeco Ins. Co. of America, 91 Wis. 2d 734 (1979). See Clarke v. O'Connor, 435 F.2d 104 (D.C. Cir. 1970); Presson v. Mountain States Properties, Inc., 18 Ariz. App. 176 (1972). See generally Love, Landlord's Liability for Defective Premises: Caveat Lessee, Negligence, or Strict Liability? 1975 Wis. L. Rev. 19. See also Restatement (Second) of Property, Landlord and Tenant c. 17, Introductory Note at 155-156 (1977) (adopting common law rule set out in Restatement [Second] of Torts Sections 355, 365 [1965], but acknowledging trend away from common law rule). [Note 6]

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The former rule was not without its reasons. When a landlord rents an apartment to a tenant, he gives up his right to enter. Ordinarily, absent a contractual agreement or the tenant's permission, the landlord can neither inspect for defects nor make repairs on the rented premises. See G. L. c. 186, Section 15B (1) (a). This obstacle, however, does not justify the landlord's wholesale absolution from liability. [Note 7] Matters of control, like matters of status, can be components of familiar negligence analysis; they can affect such questions as reasonableness and foreseeability. So, too, may matters of intervening negligence by the tenant or others be treated. Cf. G. L. c. 186, Section 19. In particular, a landlord should not be liable in negligence unless he knew or reasonably should have known of the defect [Note 8] and had a reasonable opportunity to repair it. [Note 9]

Our statutes do not support limiting a landlord's negligence liability to areas under his control. General Laws c. 186, Section 19, [Note 10] requires most landlords to exercise reasonable

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care to correct an unsafe condition of which the tenant or a code enforcement agency has given him notice. If a landlord fails to correct the condition within a reasonable time, the tenant or any person rightfully on the premises has a tort action against the landlord for injuries sustained. General Laws c. 186, Section 15, [Note 11] renders invalid any lease clause which has the effect of idemnifying the landlord or exculpating him from "any . . . negligence . . . on or about the leased . . . premises." In St. 1974, c. 575, Section 1, the Legislature deleted the phrase "and not within the exclusive control of the lessee or tenant." Thus, the landlord is liable in negligence for defects of which he has notice, even though the defect occurs on the rented premises. Furthermore, the landlord cannot exculpate himself from liability for negligent maintenance of the rented premises. Both of these statutes are consistent with the result we reach today. [Note 12]

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We reverse the judgment and remand the case to the Superior Court with orders that the jury's verdict be reinstated.

So ordered.