Opinion
October 28, 1964.
Edward R. Butterworth, for the defendant, submitted a brief.
No argument or brief for the plaintiff.
Exceptions sustained. The most favorable evidence shows that the plaintiff was the invitee of a tenant in the building owned by the defendant; that he slipped and fell because of ruts in the snow on that part of a twenty-eight foot wide outdoor common passageway, located between buildings, which was under the control of the defendant and was used by trucks of the tenants of the defendant and by the occupants of adjoining property. The judge, having instructed the jury that the plaintiff's rights in the common passageway were no greater than those of the tenant, failed to give, subject to the defendant's exception, in substance or effect the necessary further instructions that the mere relationship of landlord and tenant does not impose upon the landlord the duty to remove snow and ice naturally accumulating upon areas provided for the common use of tenants, and that, in the absence of a showing by the terms of the lease or other valid agreement between the landlord and the tenant that the landlord assumed that duty, no such duty arises. McNeill v. Home Sav. Bank, 313 Mass. 664, 666-668, and cases cited.