Published on: November 28, 2016
Dressed in holiday style
In the air there’s a feeling of Christmas
Children laughing, people passing
Meeting smile after smile…
Silver Bells, Nat King Cole
Its holiday season and the sidewalks will soon be busy with shoppers galore. Apparently, city sidewalks and silver bells are on the minds of the Massachusetts Appeals Court as well. On November 18, 2016, the Massachusetts Appeals Court decided in a split (2-1) decision that a private landowner abutting a public sidewalk did not have a duty to repair a defective sidewalk or to warn pedestrians or the city of the hazard. The case involved an individual who tripped and fell on an uneven sidewalk adjacent to the John Hancock parking garage in Boston sustaining significant injuries as a result. The sidewalk was owned by the City of Boston. The sidewalk was adjacent to a commercial building. After the fall, the management company for the owner of the commercial building paid a contractor to eliminate the hazard by grinding down the sidewalk to prevent any further injuries. No good deed goes unpunished. The owner of the commercial building and the management company were sued for negligent maintenance and/or oversight of the sidewalk and failure to warn. The Trial Court granted summary judgment in favor of the owner and management company holding that they owed no duty as they did not own the sidewalk. The Appeals Court affirmed that no duty existed as a matter of law, holding: The duties of an owner of land abutting a sidewalk or other public way are limited. Our case law establishes that such an owner must only “refrain from using his land or maintaining conditions or structures thereon in a manner which will interfere with the safety and convenience of travelers on the public way. In other words, an owner is charged with the negative duty of refraining from creating an unsafe condition on the public way adjacent to his property, but no more. Undeterred the Plaintiff pressed on arguing that the fact that the commercial owner and management company ground down the sidewalk after the accident showed that they exercised control over the sidewalk, which therefore created a duty. The Appeals Court acknowledged that a duty can be created in certain circumstances based on conduct and control, but rejected any duty based on the facts of this case. Specifically, the Appeals Court held: Under some circumstances, “a duty of care may arise from the right to control land, even where the person held to such a duty does not own the land in question.” That general principle does not apply here for two reasons. First, the record contains no evidence concerning the existence of any legal right of control possessed by the defendants over the sidewalk, but merely an unopposed remedial action. Second, the city, which is the owner of the sidewalk here, is a public entity statutorily tasked with control of sidewalk maintenance and repair. Our conclusion also comports with the Commonwealth’s “elaborate and comprehensive statutory system” establishing municipal liability for injuries resulting from defects in public ways. That being said, Justice Milkey filed a dissenting opinion suggesting that the issue of whether the law cited by the Appeals Court should be changed in the future should be addressed by the Supreme Judicial Court going forward. So the issue may soon be visited by the Supreme Judicial Court going forward. So what are the takeaways for condominiums or property owners abutting public sidewalks. Do not maintain them and do not exercise any control over them either pre- or post- accident.
- If an issue is noticed about a sidewalk, contact the Town or City advising of the issue and requesting that it be addressed promptly, follow up and document, document, document the condition and the communication.
- As the Court noted, don’t take any action on your property that affects the integrity of the sidewalk, as that may give rise to a duty.
Of course, the rules may change when the Supreme Judicial Court takes a further look at the law. If you have any questions about the case or the law, don’t wait to see Ed Allcock on the sidewalk, e-mail him at email@example.com.
For a copy of the decision [click here].