Delano v. Mother's Super Market, Inc.

Counihan, J.

This is an action of tort in which the plaintiff seeks to recover damages for personal injuries sustained when she was on land in the control of the defendant as a business invitee of the defendant, by reason of an accumulation of snow and ice on that land. The declaration contained four counts. The first count was grounded upon negligence and the second count upon a nuisance. In the third and fourth counts the husband of the plaintiff sought to recover consequential damages but the judge found for the defendant on these counts because of want of suitable notice by him to the defendant. Erickson v. Buckley, 230 Mass. 467, 472-473.

Counts 1 and 2 allege that the accident happened on a walk on Granite Street, a public highway in the town of Webster, on February 20, 1956. The evidence showed that the accident happened on land in the control of the defendant about fifteen feet away from Granite Street. No motions or requests for rulings in respect to this variance were made by the defendant.

The action was tried before a judge without jury who filed written findings of fact and rulings of law, and found for the defendant on count 1 and for the plaintiff on count 2. The judge expressly found that the plaintiff was a business invitee of the defendant and that there was no negligence on the part of the defendant. He found for the plaintiff on count 2 on the theory of a “nuisance.” Whether a public or private nuisance existed he did not determine specifically.

The action comes here upon the exceptions of the defendant to the denial of its request “3. The evidence does not warrant a finding that the plaintiff, Charlotte C. Delano, was a business invitee of the defendant when her alleged injuries were incurred,” and to certain rulings of the judge, “1. Where a defendant in control of premises, collects water into a definite channel in any manner and pours it upon an areaway designed for the use of business invitees whereby, through the operation of natural causes, ice there forms, it is the efficient cause in the creation of a nuisance and he is hable for whatever damages result as a probable consequence. 2. The plaintiff may recover damages from the defendant for personal injuries taking place on the defendant’s private property, on a theory of nuisance. 3. The plaintiff, Charlotte C. Delano, may recover damages from the defendant for personal injuries sustained by her while she was a business invitee of the defendant on premises within the defendant’s control, where there was no negligence on the part of the defendant, on a theory of nuisance.”

We assume without deciding that upon the evidence the judge was warranted in finding that the plaintiff was a business invitee of the defendant so that there was no error in the denial of the defendant’s request for a ruling to the contrary. We are of opinion that there was error in the rulings of the judge to which the defendant took exceptions, whether the judge acted on the theory of a public or private nuisance.

It is settled by the express finding and by the finding for the defendant on the count for negligence, to which no exception was taken by the plaintiff, that the injury sustained by the plaintiff was not caused by any negligence of the defendant so that the only issue before us is whether the plaintiff may recover on count 2 on the theory that the defendant maintained a nuisance on its land. United Elec. Light Co. v. Deliso Constr. Co. Inc. 315 Mass. 313, 317.

The findings of facts by the judge disclose the following: The defendant was a tenant and in control of a certain parcel of land on Granite Street. The defendant conducted a supermarket on this parcel in a building, the front of which was about thirty feet from the Street. Between Granite Street and the building was a substantial black topped area which was used by customers of the defendant going to and from the store on foot or by automobile. The judge could warrantably have found that there was ice on the surface of this area caused by an artificial collection of water from the gutter and eaves of the building which became frozen and was covered by light snow.

The plaintiff accompanied by a friend walked along Granite Street on her way to work. When about opposite the supermarket at about 8 a.m. she left Granite Street and ■walked across the black topped area to the entrance to the store to purchase cough drops. There was a light on in the store but when she reached the entrance she discovered that the store was not open. She then turned around and retraced her steps intending to get onto Granite Street and continue on her way to work. When approximately in the middle of the areaway she slipped on the snow and ice and sustained injury.

On these findings, the accident did not happen on Granite Street. There is no basis for recovery on the theory stated in cases like Shipley v. Fifty Associates, 106 Mass. 194. See Leahan v. Cochran, 178 Mass. 566, 570; Lamereaux v. Tula, 312 Mass. 359, 362. The rule of liability in such cases is often described as resting on the creation of a public “nuisance.” Despite language in our cases suggesting that such liability for creating a dangerous condition in a public way may arise apart from negligence, such statements may be too broad. See Bullard v. Mattoon, 297 Mass. 182, 187. See also Smethurst v. Barton Square Independent Congregational Church, 148 Mass. 261, 264-265; Leahan v. Cochran, 178 Mass. 566, 569; Hynes v. Brewer, 194 Mass. 435, 439-440; Blanchard v. Stone’s Inc. 304 Mass. 634, 639. These cases we need not now review, beyond noting that the liability, even in such cases, may rest on negligence in maintaining an artificial structure on private land which the owner should have foreseen would cause a dangerous condition on a public way.

We are not inclined to extend the doctrine of these cases, if it exists apart from negligence, to the creation of dangerous conditions on land of a defendant. The term “nuisance” as a ground of liability usually results in confusion and frequently is a method of avoiding precision in analysis. See Restatement: Torts, c. 40, Scope and Introductory Note, pp. 215-225 (cf. §§ 822-824); Prosser, Torts (2d ed.) §§ 70-72. Accordingly, no liability can be found to exist on any theory of “nuisance.” As the trial judge has found that there was no negligence, there can be no recovery.

The case of United Elec. Light Co. v. Deliso Constr. Co. Inc. 315 Mass. 313, relied upon by the plaintiff, is distinguishable on its peculiar facts and its holding ought not to be extended.

Exceptions sustained.

Judgment for the defendant.