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Tuchinsky v. Beacon Property Management Corp.9/16/1998
Middlesex.
April 14, 1998.
Landlord and Tenant, Landlord's liability to third person, Control of premises. Contract, Lease of real estate.
Civil action commenced in the Superior Court Department on July 25, 1995.
The case was heard by Hiller B. Zobel, J., on motions for summary judgment.
On the basis of a landlord's reservation of a right to approve its tenants' construction plans and to make repairs if the tenant does not, the plaintiff Rebecca Tuchinsky seeks to impose liability upon the defendants for injuries she suffered in space otherwise wholly in the control of her employer, who is the tenant. A Judge of the Superior Court allowed defense motions for summary judgment and ordered entry of judgment in favor of the defendants. We affirm.
These are the undisputed facts. Tuchinsky was an employee of Putnam Investments, Inc. (Putnam), which occupied most of the fourth floor and all of the fifth through fourteenth floors of One Post Office Square, a high rise office building in Boston. That building was owned by One Post Office Square Associates (the landlord) and managed on behalf of the landlord by Beacon Property Management Corporation (the management company). The accident, a peculiar one, occurred on March 25, 1994, while Tuchinsky was standing in the elevator lobby on the fifth floor of Putnam's office. Between the elevator lobby and interior space was a partition through which there was a door or set of doors. Tuchinsky was hurt when a co-worker pushed that door open so that it struck Tuchinsky in the back. The alleged negligence in the design of the door is that it did not have some mechanism which would restrict its degree and rate of travel when opened.
By designation in the lease, the elevator lobby was part of the leased premises. It was not common area and was not used by anyone except Putnam and its invitees. In 1987, Putnam, which had been a tenant since 1979, undertook a major renovation of its space, including the fifth floor elevator lobby. Putnam hired its own architect to do the drawings and specifications for the renovations, and it also selected and paid the contractor who built them. This was consistent with lease terms that made the design and building of leasehold improvements the responsibility of the tenant. Under the lease, the tenant was also responsible for repairing the leased premises. Tuchinsky is interested in placing responsibility for any neglect in design of the door on someone other than Putnam, her employer, because against Putnam she can receive only workers' compensation. From a third party she has the potential for a larger recovery.
" lessor of commercial premises is liable in tort for personal injuries only if either (1) contracted to make repairs and made them negligently, or (2) the defect that caused the injury was in a 'common area,' or other area appurtenant to the leased area, over which the lessor had some control." Chausse v. Coz, 405 Mass. 264, 266 (1989). Sheehan v. El Johnan, Inc., 38 Mass. App. Ct. 975 (1995). Neither the landlord nor the management company made any repairs to the door or the elevator lobby, so they cannot be liable for having made them negligently. The allegedly unsafe door was not in a common area. It was within the leased area, and it was not in an area appurtenant to the leased area.
Tuchinsky's residual theory of recovery from the defendants is that the landlord reserved in the lease various rights to make alterations and repairs and to approve Putnam's alterations and repairs. In Sect. 10 of the lease, the landlord reserves the right to make alterations to the building but it is apparent when the section is read
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