(dissenting). The defendant Christensen filed a proper motion for judgment notwithstanding the verdict. The trial judge denied the motion. This court’s affirmance of the judgment for the plaintiffs necessarily implies the court’s determination that the evidence warranted the verdicts in the plaintiffs’ favor. I believe that the evidence did not warrant the verdicts and that the trial judge’s denial of Christensen’s motion therefore was erroneous. I would reverse the judgment for the plaintiffs and order the entry of judgment for Christensen.
The evidence did not warrant a finding that Christensen was negligent. The court does not suggest otherwise. However, as a matter of tort law, the court holds Christensen responsible for the independent contractor’s negligence, reasoning that “Christensen’s liability is determined by his express written obligations contained in the declaration of trust ‘to make repairs, additions and improvements to or alterations of the common elements,’ and ‘to be responsible for the proper maintenance and repair of the common elements.’ ” Ante at 286-287.1 The court recognizes the general rule that, in the absence of his own personal negligence, the employer of an independent contractor is not liable for physical harm caused by the contractor’s negligence. Ante at 285 n.9. However, after noting that there are recognized *292exceptions to that general rule, the court creates a far-reaching and inappropriate exception not previously recognized in this Commonwealth.
The new exception is that a possessor of land, such as Christensen or a landlord, who has agreed to do what the law would require of him in any event, namely “to be responsible for the proper maintenance and repair” of common areas, is liable for injuries due to the negligence of an independent contractor. The court appears to rely heavily on Banaghan v. Dewey, 340 Mass. 73 (1959), and then states, “Whatever hairsplitting distinctions might have been assigned to various repair covenants by cases decided almost four decades ago, we do not think that the promise undertaken by Christensen should be construed to relieve him from liability because the harm was caused solely by his independent contractor.” Ante at 287.
. Banaghan v. Dewey, supra, which itself was decided “almost four decades ago,” does not support the court’s decision. The court states, ante at 287, that in Banaghan “[t]he jury found that an independent contractor hired by the trustees negligently repaired the elevator, and that the negligence caused personal injury to the plaintiff. The court rejected an argument by the trustees ‘that they were not liable if they exercised care in selecting a reputable independent contractor to maintain the elevator.’ Id. at 79. The court stated: ‘The short answer to this contention is that the jury could find that the trustees themselves were under an admitted duty to keep the elevator in a safe condition, and are liable even for the negligence of an independent contractor carefully selected by them.’ Id., and cases and authorities cited.” As the Banaghan court pointed out, by that agreement “the trustees ... assumed a duty greater than that imposed under the common law rule. . . . Such an agreement, albeit unusual . . . may supplant the common law obligation.” (Citations omitted.) Id. at 78.
The Banaghan agreement was characterized by the court in Glassman v. Hamel, 341 Mass. 422, 424-425 (1960), decided eleven months after the Banaghan decision, as “an express agreement to keep the elevator continuously in repair.” Such an agreement is “a most onerous undertaking” and “is not made out by a simple agreement [to] keep the premises in repair.” Ryerson v. Fall River Philanthropic Burial Soc’y, 315 *293Mass. 244, 248 (1943), quoting Fiorntino v. Mason, 233 Mass. 451, 453 (1919). An agreement to make necessary repairs is an agreement to repair on notice. It is not an agreement to maintain the premises in a safe condition at all times. Ryerson, supra at 250-251.
The distinction between the Banaghan-type agreement and the agreement in this case, which distinction has survived in this Commonwealth until today, is far from frivolous “hairsplitting.” Banaghan, therefore, cannot properly be cited as authority for the proposition that a possessor of land, who agrees, on notice of need, to make repairs of the common areas or to be responsible for their maintenance, as is the situation in this case, may be held liable without his fault to one who sustains injuries due to the negligence of an independent contractor.
Here, prior to the plaintiffs’ accident, Christensen had no notice either that the independent contractor had improperly set the nails or that the railing was unsafe. Christensen was not shown to have been negligent and he was not shown to have violated his agreement. It may be that a possessor of land may not delegate a voluntarily assumed contractual responsibility to keep his premises continuously in repair, as the court states, ante at 288, see Banaghan v. Dewey, supra, and Glassman v. Hamel, supra, but that is not relevant to this case, which does not involve such an agreement.
I would order that the judgment in favor of the plaintiffs against the defendant Christensen be vacated and that judgment for the defendant Christensen be entered.
Elsewhere the court states, “The agreement undertaken by Christensen was to monitor and properly to maintain and repair a third-floor porch which, if not safely repaired, would (and did) become highly dangerous.” Ante at 287. There was no evidence that Christensen agreed to “monitor” anything.