The opinion
Cutter, J.
(dissenting in part). 1. I concur in sustaining the defendant’s exceptions. I think the defendant would be liable (in the absence of intentional harm) only if found to have been negligent. That probably is also the correct analysis of cases like Shipley v. Fifty Associates, 106 Mass. 194 , dealing with injuries occurring on public ways caused by conditions existing on adjacent private land. It is not now necessary, however, to decide that question.
2. I would not now order judgment for the defendant, but would merely sustain the defendant’s exceptions. The trial judge concluded that “it cannot quite be found that there was negligence on the part of” the defendant. The immediate context of this conclusion suggests strongly that the judge meant no more than that there was no negligence on the part of the defendant in clearing the areaway of snow, or in supervising and maintaining the areaway. His ruling (see fourth paragraph of the opinion) that the defendant “is *298 liable for nuisance without proof of negligence” indicates that he regarded it as unnecessary to consider whether the defendant had been negligent in maintaining its structure and areaway in a condition which the defendant knew, or in the exercise of reasonable care ought to have known, might result, as a foreseeable and probable consequence, in a dangerous artificial accumulation of ice and snow in places used by invitees. The judge’s subsidiary findings imply that he would have concluded, if he had thought it relevant, that such negligence existed. Instead he seems to have assumed that the circumstances found by him, because constituting what he calls a “nuisance,” created essentially an absolute liability wholly apart from negligence of any type. In view of this erroneous assumption and the likelihood that there was failure to consider important aspects of the issue of negligence, I think that there should be opportunity for reconsideration and further proceedings in the Superior Court in the light of the opinion.