We have often said that, although a landlord has no duty arising from the landlord and tenant relationship to find and remove obstacles or objects placed in common areas by natural causes or by the actions of third persons not subject to his control, he does have a duty not to leave or cause to be left obstacles or obstructions likely to cause harm or injury to persons lawfully using the common premises. Watkins v. Goodall, 138 Mass. 533, 536. Bell v. Siegel, 242 Mass. 380, 382. Caruso v. Lebowich, 251 Mass. 477. Palladino v. De Stefano, 258 Mass. 12. Hunter v. Goldstein, 267 Mass. 183, 185. Martin v. Rich, 288 Mass. 437. Bacon v. Jaques, 312 Mass. 371, 373-374, and cases cited. Cf. Chalfen v. Kraft, 324 Mass. 1, 4-5; Ross v. Broitman, 338 Mass. 770, 773.
In the absence of any express or implied agreement, Berk would not be under any obligation to remove a natural accumulation of snow or ice from the stairway, Smolesky v. Kotler, 270 Mass. 32, Boulton v. Dorrington, 302 Mass. 407, McNeill v. Home Savings Bank, 313 Mass. 664; nor would he be liable if he negligently but gratuitously undertook its removal. Bell v. Siegel, 242 Mass. 380, 382. Martin v. Rich, 288 Mass. 437, 439. Berk, however, could have been found to have assumed a duty by the terms of the letting to keep the stairway clear from snow and ice, which was negligently performed, and he was therefore liable to a tenant who was thereby injured. Nash v. Webber, 204 Mass. 419. Erickson v. Buckley, 230 Mass. 467. Hebb v. Gould, 314 Mass. 10. Carey v. Malley, 327 Mass. 189.
Under these circumstances Bank was under a duty to those, without prior notice of defects, entering as business guests or invitees of the tenants to use ordinary care to keep the entrance to the passageway in a reasonably safe condition for their use. This is the rule given general recognition and approval by the courts of this country, see 32 Am.Jur. pp. 561-570, secs. 688-691; 52 C.J.S., Landlord and Tenant, s 417(2)(a), p. 29; Martin v. Rich, 288 Mass. 437, 193 N.E. 21, 97 A.L.R. 220, and is the one adopted and followed by the courts of this state. Paternostro v. Bradley Tex.Civ.App. 1924, 262 S.W. 896; 6 Tex. Jur. Ten Year Supp. p. 800, sec. 205a.
Golvin v. Beals, 187 Mass. 250, 253, and cases cited. Martin v. Rich, 288 Mass. 437, 440. Certain cases cited by the plaintiffs at the oral arguments are distinguishable.
In others it is held that he does not owe such a duty. See Martin v. Rich, 288 Mass. 437, 193 N.E. 21, 97 A. L. R., 217; Gianpaola v. Paoli, 129 N.Y. Supp., 180; Boulton v. Dorrington, Admr., 302 Mass. 407, 19 N.E.2d 731; Rosenberg v. Chapman Natl. Bank, 126 Me. 403, 139 A. 82; Roman v. King, 289 Mo., 641, 233 S.W. 161, 25 A. L. R., 1263; McGinley v. Alliance Trust Co., 168 Mo., 257, 66 S.W. 153, 56 L.R.A., 334, and cases cited. However, there seems to be no great variance of opinion upon the proposition that an owner may obligate himself to perform such duty by contract either express or implied by a course of conduct.
Quinn v. Crowe, 88 Ill. App. 191, 194. Such repairs are also referred to as mere gratuitous acts. Whitehead v. Comstock Co., 25 R.I. 423, 428, 56 A. 446; Martin v. Rich, 288 Mass. 437, 440, 193 N.E. 21; Conahan v. Fisher, 233 Mass. 234, 238, 124 N.E. 13. An agreement to repair will not be implied from a provision in a written lease giving the landlord the right to enter to make repairs. Gulliver v. Fowler, 64 Conn. 556, 567, 30 A. 852. See also Elefante v. Pizitz, 182 App.Div. 819, 821, 169 N.Y.S. 910; 2 Underhill, Landlord Tenant, p. 850; 1 Tiffany, Landlord Tenant, p. 582; 36 C. J. 209, 881.
It was held that a verdict for the defendant ought not to have been directed, and it was said (page 421) that "The plaintiff has the same and only the same rights to maintain her action against the defendant that her mother would have under similar circumstances." In Martin v. Rich, 288 Mass. 437, 439, it was not doubted that a tenant could recover for a fall upon oil on a common stairway if the landlord had undertaken for consideration to keep the stairway clean, but recovery was denied because the undertaking was gratuitous and also because there was no evidence of negligence in not removing the oil. See also Boulton v. Dorrington, 302 Mass. 407, 408; Allan v. Essanee, Inc. 309 Mass. 1, 2; McNeill v. Home Savings Bank, 313 Mass. 664.
There was error in the denial of the defendant's motion for a directed verdict. Woods v. Naumkeag Steam Cotton Co. 134 Mass. 357. Watkins v. Goodall, 138 Mass. 533. O'Donoughue v. Moors, 208 Mass. 473. Smolesky v. Kotler, 270 Mass. 32. Martin v. Rich, 288 Mass. 437. Rogers v. Dudley Realty Corp. 301 Mass. 104. Boulton v. Dorrington, 302 Mass. 407. Allan v. Essanee, Inc. 309 Mass. 1. Exceptions sustained.
He would be liable for negligently leaving a coal scuttle in a dangerous position, but not for not removing one so placed by another person." Watkins v. Goodall, 138 Mass. 533, 536. Caruso v. Lebowich, 251 Mass. 477, 479. Palladino v. De Stefano, 258 Mass. 12, 13. Prushensky v. Pucilowski, 269 Mass. 477, 480. Martin v. Rich, 288 Mass. 437, 439. Richmond v. Warren Institution for Savings, 307 Mass. 483, 486. The landlord's duty under discussion is analogous to that which he owes to travellers on the highway.
The duty was on plaintiff to look where she was walking, and failing to do so she was guilty of contributory negligence. Battles v. Wellan, La. App., 195 So. 663; Martin v. Rich, 288 Mass. 437, 193 N.E. 21, 97 A.L.R. 217; Mullen v. Sensenbrenner Mfg. Co., Mo., 260 S.W. 982, 33 A.L.R. 176; Bilger v. Great A. P. T. Co., 316 Pa. 540, 175 A. 496; Hamilton v. Lee, La. App., 144 So. 249; Brisbin v. Wise Co., 6 Cal.App.2d 441, 44 P.2d 622. Defendant is not liable to invitee for an obvious defect. Lamson Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388; Ala. Baptist Hospt. v. Carter, 226 Ala. 109, 145 So. 443; Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794, L.R.A. 1918F, 137; 20 R.C.L. 56, § 52; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; 45 C.J. 837. Plea of contributory negligence must be read and construed in connection with the complaint or count which it professes to answer.