Opinion
October 30, 1969.
Louis Kerlinsky for the plaintiffs.
Charles S. Cohen for the defendant.
Mrs. Shepard and her minor son on February 8, 1961, were injured when, according to her testimony and the plaintiffs' notice of claim, she tripped on a porcelain tabletop, partly covered by snow, in a driveway through a courtyard. The driveway led to the apartment, of which the Shepards were tenants, in a large building owned by the defendant. The tabletop had been seen for several days "lying at the edge of the courtyard on a snowbank." It then "was not interfering with the driveway." The "tabletop was not in the driveway the morning of the accident." There was no evidence concerning who had placed the tabletop on the snowbank in the courtyard or about who, if anyone, moved it. Cf. Martin v. Reis, 344 Mass. 32, 35-36. We need not decide whether prior action by the defendant in cleaning the courtyard was merely a gratuitous undertaking not required by its lease to, and arrangements with, Shepard. See Bell v. Siegel, 242 Mass. 380, 382; Spack v. Longwood Apartments, Inc. 338 Mass. 518, 519-520. Even if the landlord had assumed some duty to clear the courtyard of obstacles, there was no evidence that the tabletop had been moved from its harmless position on the snowbank to the point in the driveway where Mrs. Shepard tripped on it a sufficient time before the accident (see Deagle v. Great Atl. Pac. Tea Co. 343 Mass. 263, 265-266) so that the landlord could be found to be negligent in failing to remove it. A verdict for the defendant was properly directed.
Exceptions overruled.