A Step Towards Evolution of a Business Owner's Duty

A person who has sustained personal injury damages due to a defect in a public way has the right to seek monetary compensation. However, the statute governing personal injuries against municipalities from a defective public way is limited to $5,000.00. M.G.L. c. 84 §15. This creates a very difficult situation for a person who has accumulated tens of thousands of dollars in medical bills and lost wages as a result of injuries sustained on a defective public sidewalk or street.

Municipalities, such as the City of Boston, are arguably not the only entities that control or maintain the public sidewalks. Over the last several years, the City of Boston has regularly looked to private property owners to keep the sidewalk adjacent to their property safe for pedestrians. Moreover, most business owners inherently understand that they are responsible for ensuring that the sidewalk adjacent to their business is free from defects.

In Halbach v. Normandy Real Estate Partners, the plaintiff, Eric Halback left his office located in the John Hancock Tower in Boston Massachusetts. Halbach v. Normandy Real Estate Partners, 90 Mass. App. Ct. 669, 2016 Mass. App. LEXIS 165 (Mass. App. Ct. 2016). The plaintiff was walking along the public sidewalk on Clarendon Street adjacent to the John Hancock Parking Garage which is owned by Normandy Real Estate Partners. As the plaintiff was walking, an unexpected change in the elevation of the sidewalk due to unevenly poured concrete caused him to trip and fall. As a result of the trip and fall, the plaintiff sustained multiple and severe injuries, including bilateral rupture of this quadriceps tendon.

The plaintiff filed suit against the City of Boston and in an attempt to expand the adjacent landowner’s responsibility, the plaintiff also filed suit against Normandy Real Estate Partners predicated on negligence. In order to succeed on a claim of negligence, the plaintiff must first establish that the defendant owned the plaintiff a legal duty of care to repair or warn of hazards on the sidewalk. Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829, 2006 Mass. LEXIS 438 (Mass. 2006).

The defendant, Normandy Real Estate filed for summary judgment contending that Massachusetts case law “establishes that the mere ownership of property abutting a public side walk is insufficient to create a duty to repair or warn of hazards on the sidewalk.” Kirby v. Boylston Mkt. Ass'n, 80 Mass. 249, 1859 Mass. LEXIS 317, 14 Gray 249 (Mass. 1859). The judge concluded that the defendants “owed no legal duty to the plaintiff” and that he declined to create an “entirely new duty.” Halbach v. Normandy Real Estate Partners, 90 Mass. App. Ct. 669, 2016 Mass. App. LEXIS 165 (Mass. App. Ct. 2016).

The plaintiff appealed the decision. The Appeals Court upheld the granting of summary judgment for the defendant. The Appeals Court found that the defendant “owned no legal duty to the plaintiff.” Id. However, Justice Milkey wrote a concurrent opinion which clearly states that the current common law might be outdated and that the plaintiff has a forceful case that the existing law should be changed to reflect the character of current society. Justice Milkey supported this notion by stating that “municipalities regularly look to private property owners to keep sidewalks adjacent to their property passable and safe,” and that “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.” Davis v. Westwood Group, 420 Mass. 739, 652 N.E.2d 567, 1995 Mass. LEXIS 303 (Mass. 1995). Thus, Justice Milkey implied that holding business owners labile for providing a safe ingress and egress to customers is the next step in the evolution of the common law.

Justice Mikley’s concurrent opinion is significant because it recognizes the fact that the City of Boston is not the only entity that controls or maintains the sidewalks, and thus, is not the only entity that should be held liable for defects. Moreover, Justice Mikley’s concurrent opinion also signifies that the law will likely evolve to provide persons who are injured on public ways with adequate redress. Therefore, Justice Mikley’s concurrent opinion is a step in the right direction towards providing future plaintiffs with adequate compensation.

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