Lead Opinion
Plaintiff Eric Halbach (Halbach) suffered serious injuries when he fell as a result of uneven pavement on a public sidewalk adjacent to a commercial building owned by defendant 100 & 200 Clarendon Street, LLC (Clarendon), and operated, leased, and maintained by one or more of the remaining defendants (collectively, Normandy). Halbach and his wife, Kathleen Halbach, subsequently filed a complaint alleging that the defendants had a duty to either repair the sidewalk or warn pedestrians
Background. The following undisputed facts are taken from the summary judgment record. On June 4, 2009, Halbach was walking on Clarendon Street in the city, near the John Hancock garage (garage). He tripped and fell on uneven pavement on a part of the sidewalk directly adjacent to the garage, sustaining significant injuries as a result.
On February 17, 2012, the plaintiffs filed a complaint in the Superior Court, which was amended on October 4, 2013. The amended complaint alleges that the defendants were negligent in their “ownership, control, maintenance and/or inspection” of the sidewalk adjacent to the garage by their “failure to ensure a safe pedestrian walkway” and their “failure to keep the area of the walkway free from defects and conditions rendering it unsafe.”
Standard of review. “We review a grant of summary judgment de novo to determine ‘whether, viewing the evidence in the fight most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’ ” Juliano v. Simpson, 461 Mass. 527, 529-530 (2012), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). “The moving party bears the burden of affirmatively demonstrating the absence of a triable issue.” Lev v. Beverly Enterprises-Mass., Inc., 457 Mass. 234, 237 (2010). “Conclusory statements, general denials, and factual allegations
Discussion. The plaintiffs have conceded, both in their brief and at oral argument, that there are no genuine issues of material fact, agreeing that the question presented is one of law. They contend that the defendants owed a duty to the plaintiffs to repair or warn of hazards on the public sidewalk adjacent to their building. The plaintiffs claim that the duty stems from the defendants’ right and power to exercise control over the sidewalk, that the defendants breached that duty, and that Halbach was injured as a result.
‘“To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage.” Jupin v. Kask, 447 Mass. 141, 146 (2006). Thus, in order to succeed on their claim of negligence, the plaintiffs here must first establish that the defendants owed them a legal duty of care. The existence or nonexistence of such a duty is a question of law and is, therefore, an appropriate subject for disposition by summary judgment. See O’Sullivan v. Shaw, 431 Mass. 201, 203 (2000); Remy v. MacDonald, 440 Mass. 675, 677 (2004).
The duties of an owner of land abutting a sidewalk or other public way
It is not surprising, then, that the plaintiffs cite no Massachusetts authority imposing an affirmative duty on landowners to inspect the public sidewalks adjacent to their land and, if a defect is discovered, a corresponding duty to either cure or notify the governing municipality.
The plaintiffs nevertheless claim that, because the defendants exercised control over the sidewalk, their lack of ownership does not shield the defendants from liability. The plaintiffs contend that Normandy’s act of grinding down the pavement after Halbach’s
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.” Davis v. Westwood Group, 420 Mass. 739, 744-745 (1995), citing Underhill v. Shactman, 337 Mass. 730, 733 (1958). 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. See generally Underhill, supra (examining parties’ commercial lease to determine who retained control over maintenance of shopping center parking lot). Second, the city, which is the owner of the sidewalk here, is a public entity statutorily tasked with control of sidewalk maintenance and repair. See G. L. c. 84, § 1, as amended by St. 1991, c. 552, § 52 (‘“[T]own ways . . . shall be kept in repair at the expense of the town in which they are situated, so that they may be reasonably safe and convenient for travelers”); Myers v. Lee, 8 Mass. App. Ct. 874 (1979); Farrell v. Boston Water & Sewer Commn., 24 Mass. App. Ct. 583, 587 (1987) (defect on public sidewalk falls within scope of G. L. c. 84). Compare Davis, supra at 747 (holding that power to control State highway ‘“lies with the State, and not with nongovernmental parties”); id. at 745, quoting from G. L. c. 81, § 13 (1992 ed.) (‘“State highways shall be maintained and kept in good repair and condition by the department [of highways] at the expense of the commonwealth”).
Our conclusion also comports with the Commonwealth’s ‘“elaborate and comprehensive statutory system” establishing municipal liability for injuries resulting from defects in public ways. Huff v. Holyoke, 386 Mass. 582, 585 (1982). See ibid. (holding that by framing her complaint in terms of common-law nuisance, plaintiff could not avoid statutory limit on recovery of damages against municipality); G. L. c. 84, §§ 1, 15. See also
Conclusion. There is no dispute that Halbach fell on uneven pavement on a public sidewalk and, as a result, sustained personal injuries. It is also undisputed, however, that the defendants did not create or contribute to the conditions of the sidewalk. In the absence of such evidence, under the common law as it presently exists in Massachusetts, the defendants had no duty as abutting commercial property owners to repair or warn of hazards on the public sidewalk.
Judgment affirmed.
Halbach suffered a bilateral quadricep tendon rupture.
The amended complaint also includes counts against each defendant for loss of consortium by Kathleen Halbach.
See Diamond v. Newton, 55 Mass. App. Ct. 372, 374 (2002) (public way consists of entire width of dedicated land, including road and sidewalk).
The plaintiffs rely upon cases from other jurisdictions to establish a duty here. See, e.g., Stewart v. 104 Wallace St. Inc.. 87 N.J. 146, 157 (1981) (“[C]om-mercial landowners are responsible for maintaining in reasonably good condition the sidewalks abutting their' property and are liable to pedestrians injured as a result of their negligent failure to do so”). The out-of-State cases are not controlling here, and are inconsistent with our common law.
The case of Papadopoulos v. Target Corp., 457 Mass. 368 (2010), cited by the plaintiffs, is inapposite. First, it involved an accident that occurred on a private parking lot. Id. at 369. Second, in that case, the Supreme Judicial Court abolished the distinction between the natural and unnatural accumulation of snow and ice and applied the standard of reasonable care to injuries resulting from any such accumulation. Id. at 383-384. The injury here did not result from an accumulation of snow or ice.
The plaintiffs correctly concede that “[e]vidence of postaccident safety improvements is not admissible to prove negligence.” Martel v. Massachusetts Bay Transp. Authy., 403 Mass. 1, 4 (1988). They also correctly argue, however, that such improvements can be introduced on the issue of control. See Mass. G. Evid. § 407 (2016).
For this reason, the plaintiffs’ reliance on Marsden v. Eastern Gas & Fuel Assocs., 7 Mass. App. Ct. 27 (1979), is misplaced. Although Marsden recognized that premises liability may depend upon the defendant’s control of the property, it did so in the context of a claim involving a private way. Id. at 29.
There is no merit to the plaintiffs’ contention that the motion judge erred in failing to consider the testimony of their expert witness. They concede that the testimony did not establish the defendants’ duty, but argue that the testimony was useful to establish the scope of that duty. As the defendants owed no duty of care to the plaintiffs, the testimony, which described industry standards regarding the scope of the duties of commercial landowners in maintaining abutting sidewalks, was not relevant.
Concurrence Opinion
(concurring). I agree with the majority that, under current case law, the defendants had no duty to repair the publicly-owned sidewalk abutting their property, or to warn people of the defects there. In fact, such a rule has long been established. See, e.g., Kirby v. Boylston Mkt. Assn., 14 Gray 249, 252 (1860). Whether to alter that rule is a question that properly falls to the Supreme Judicial Court. I write separately to note that the plaintiffs have a more forceful case for such a change in the law than the majority opinion suggests.
In declining to recognize that owners of property abutting a public sidewalk owe a duty to members of the public to keep the sidewalk in good repair, the cases treat public sidewalks the same as highways or other public ways. See Pritchard v. Mabrey, 358 Mass. 137, 140 (1970).
In fact, at least for some purposes, a public sidewalk that lies within the right of way created for a street is considered as paid of the public way. See Diamond v. Newton. 55 Mass. App. Ct. 372, 374 (2002) (injury caused by defect in area between road and sidewalk held subject to liability cap applicable to public ways set forth in G. L. c. 84, § 15).
I recognize that municipalities’ placing such responsibilities on abutting landowners is not new. In fact, in Kirby v. Boylston Mkt. Assn., supra, a case that appeal's to involve a sidewalk along the very same street at issue in the case before us, the Supreme Judicial Court recognized that, as of 1860, “by ordinances of the city [of Boston], it is made the duty of abutters, under prescribed penalties, to keep the side walks adjoining their' estates in good repair; and seasonably to remove all snow and ice therefrom.” 14 Gray at 252. The court nevertheless rejected the plaintiffs argument that the owner of the abutting property therefore owed him a duty to keep the sidewalk in good repair. Id, at 252-253.
Notably, the invoice for the repair refers to the walkway that was repaired not as a public sidewalk but as the “Parking Garage Walkway.”
While a defendant’s postaccident repair's are not admissible to prove negligence, they can be admitted to demonstrate control where that issue is in dispute. See Mass. G. Evid. § 407 (2016).
The majority appears to take the position that no duty can attach to a defendant absent an express “right to control” the property where the injury took place. As a legal proposition, this is not entirely clear under Massachusetts law. See Cohen v. Elephant Rock Beach Club, Inc., 63 F. Supp. 3d 130, 141 (D. Mass. 2014) (interpreting Davis v. Westwood Group, supra, narrowly). The summary judgment record is somewhat incomplete, and despite the fact that reliable versions of municipal ordinances and by-laws now may be as generally accessible as statutes, case law from another era precludes us from taking judicial notice of the current version of Boston sidewalk ordinances. See Cerwonka v. Saugus. 316 Mass. 152, 153 (1944). Nevertheless, there has been some showing that the defendants had a right to control the sidewalk abutting
Of course, industry standards by themselves do not establish the presence (or absence) of a legal duty. But that does not make them irrelevant.
Compare Heman v. Franklin, 99 Mo. App. 346, 348 (1903) (where landowner failed to comply with city’s regulation requiring abutter to repair' public sidewalk, city may recover costs of repair).
