Premises Liability
Massachusetts Superior Court Judge Questions Long-Standing “Transitory Water” Doctrine
For decades, the Massachusetts courts have adhered to the “transitory water doctrine.” Simply put, under this common law standard, Massachusetts property owners have generally been shielded from liability in slip and fall cases when an injury results from normal use in wet weather. For example, a customer who wears boots in the snow and tracks water into a store, causing another customer to slip.
Established more than 40 years ago, the transitory water doctrine has set the legal standard for property owners. With no incentive to avoid liability, large commercial property owners were virtually free from worries about injuries caused by water tracked in from outside. Make no mistake: many people have been badly hurt right after crossing the threshold of a store, where the water and grime are most concentrated.
But this may change, after a recent ruling by Superior Court Judge Cornelius J. Moriarty II.
Judge Moriarty recently ruled in Holden v. Wal-Mart Stores East, LLP. In February 2016, the plaintiff alleged she stepped into the Wal-Mart in Hanover and slipped on water that had accumulated on the floor. The spot where she slipped was between the door and a mat, which would have prevented the fall, but which was located a few feet from the doorway.
Wal-Mart argued the transitory water doctrine barred the plaintiff’s claim and moved for summary judgment. But Judge Moriarty denied this motion, writing that the transitory water doctrine can no longer be considered good law after the Supreme Judicial Court’s 2010 ruling in Papadopoulos vs. Target Corporation, 457 Mass. 368 (2010).
“Whether Wal-Mart made reasonable efforts to protect the plaintiff against the danger is for the jury to determine,” Moriarty wrote. The judge reasoned that Massachusetts law is moving towards a unified standard or reasonable care for property owners, and that old common law exceptions are being eliminated.
In 2010, the Supreme Judicial Court of Massachusetts abolished the century-old double standard governing who could bring claims for injuries resulting from slips and falls on snow and ice. Now, property owners have a responsibility to use reasonable care in clearing snow and ice.
Prior to Papadopoulos, Massachusetts law distinguished between injuries suffered by falls on “natural” and “unnatural” accumulations of snow and ice. Previously, a property owner was not liable for injuries caused by slip and falls on natural accumulations, so property owners had no legal incentive to clear snow in some cases. But property owners could be held liable if someone was injured by an “unnatural” accumulation, such as snow dropped by a plow or ice from a leaking gutter.
The Holden case is not yet resolved. If the case does result in a verdict against Wal-Mart, then Wal-Mart will have the option of appealing the summary judgment decision.
We believe that this is a sensible decision by Judge Moriarty, and that a uniform standard of reasonable care under all circumstances for property owners will lead to greater safety and fewer personal injuries.
Free Legal Consultation: Breakstone, White & Gluck
With more than 100 years combined experience, Breakstone, White & Gluck specializes in personal injury and medical malpractice cases in Boston and across Massachusetts. For a free legal consultation with our attorneys, contact us at 800-379-1244 or 617-723-7676 or use our contact form.
After Common Ground Building Collapses in Allston, Safety Reminders for Landlords and Property Owners
There were frightening pictures out of Allston on Sunday, November 4, 2018, as the Boston Fire Department responded to a report of a commercial building collapse. Firefighters found very dangerous conditions: the façade at 85 Harvard Avenue, a one-story commercial building, had fallen onto the sidewalk. The building houses Common Ground Bar and Grill, which sustained serious damage, and also other businesses.
Two people were injured, including a woman who was hit by concrete and suffered critical personal injuries outside the building. The Boston Globe reported she was with friends and they, along with others, fought to free her from the concrete. When the Boston Fire Department arrived, she was rescued and transported for medical treatment. Others inside the building were safely evacuated with assistance.
As the investigation begins, the collapse must serve as a reminder to landlords and building owners. Injuries from property defects – such as fires, slippery floors or snow and ice accumulations – are devastating for victims and families and are much more common than many people realize. But structural failures, especially in aging buildings, present extreme hazards as well.
Boston City Regulations for Building Owners and Landlords
Building owners and landlords have a responsibility to regularly inspect and maintain residential and commercial buildings. In older buildings with brick or stone facades, routing engineering analysis should be performed periodically.
In Boston, city regulations require inspection reports, but only for buildings over 70 feet tall. The regulation mandates that every exterior wall shall be inspected at least once every five years, and in the case of an unoccupied structure, inspection must be done at least once every year. Inspection reports must be completed by an architect or engineer, and filed with the city.
Inspections should not be limited to facades. Many buildings have aging iron work on balconies and exterior stairs and these can buckle under, leading to serious injuries.
"It was almost like an earthquake": Two people were injured, one critically, after the Allston building that houses the Common Ground restaurant and bar partially collapsed on Sunday afternoon. https://t.co/gh7VJMz0FP pic.twitter.com/qg3nQaEvFz
— The Boston Globe (@BostonGlobe) November 5, 2018
About Breakstone, White & Gluck – Representing Those Injured by Unsafe Property Conditions
At Breakstone, White & Gluck, our personal injury lawyers have over 100 years combined experience representing those who have been injured by the negligence and wrongdoing of others. Our attorneys have extensive experience investigating fires, porch collapses and unsafe buildings in the Boston area, then bringing claims on behalf of those injured.
If you have been injured because of unsafe property conditions, we urge you to learn your legal rights. For a free legal consultation, contact Breakstone, White & Gluck at 800-379-1244 or 617-723-7676 or use our contact form.
Food Poisoning Closes Another Massachusetts Restaurant
A food poisoning outbreak has closed a Massachusetts restaurant in the middle of the summer season, raising concerns for diners.
A North Reading restaurant has been closed indefinitely after 39 diners filed complaints related to a salmonella outbreak. The source may be the antipasto salad, but the local board of health is still investigating.
The North Reading Board of Health shutdown Kitty’s Restaurant on Main Street on July 3. The board investigated the food poisoning, which may have initially occurred on June 23. After a thorough cleaning, the restaurant was allowed to re-open – though not for long. The restaurant has been closed again following a new report, this time from a June 25th visit.
According to a Boston 25 News report, the board’s investigation is focused on antipasto salad served at the restaurant. Nine complaints have been linked to salmonella poisoning on June 23. The other 30 cases from June 23 have not been confirmed yet. After the latest complaint from June 25th, the board has recommended testing for 46 workers and another full cleaning.
What is Salmonella Food Poisoning?
Salmonella poisoning is one of the most common types of food poisoning in the United States, according to FoodSafety.gov. The onset of symptoms can come within 12 hours or may take up to three days. Possible symptoms include nausea, stomach cramping, fever, abdominal cramping and vomiting. Fever and chills are also common. Expect symptoms to last 4-7 days.
Salmonella is not usually fatal in adults, according to the Mayo Clinic. With weakened immune systems, the elderly, young children and pregnant women are at risk for complications. Individuals who suffer from AIDS, malaria and other illnesses are also at a heightened risk, as are people taking anti-rejection drugs after organ transplants.
Causes of Salmonella Poisoning
There are many sources for salmonella poisoning. One is when eggs, meat and poultry are not properly cooked, then consumed. This can happen during processing and distribution before the food reaches consumers and businesses such as restaurants.
Failure to wash one’s hands can also lead to poisoning. If a restaurant worker doesn’t wash their hands, then handles food, they can pass along Salmonella contamination.
It can also be passed along by touch from pets and animals. Always wash your hands after contact with any animal, but most of all with birds and reptiles. You can be exposed in certain countries overseas. Do your research before international travel.
How to Report a Food Poisoning Case in Massachusetts
When suffering food poisoning symptoms after eating at a restaurant, always contact your community’s local board of health. The board will notify the Massachusetts Department of Public Health. Do the same if you consumed food at a local business.
These venues likely served other people on the same day you visited. The contamination may not be an isolated incident and needs to be investigated to protect others.
Can I File a Lawsuit in Massachusetts if I Suffer Food Poisoning?
Every food poisoning case is unique and should be explored with an experienced Boston food poisoning lawyer who can advise you of your legal rights. Not everyone exposed to food poisoning suffers illness, but others are left with long-term complications. Contacting a lawyer is an important step to preserve your legal rights.
Free Legal Consultation in Massachusetts Food Poisoning Cases
With over 100 years combined experience, the Boston personal injury lawyers at Breakstone, White & Gluck specialize in handling food poisoning cases. These cases are complex and must be investigated promptly.
For a free legal consultation, contact us at 800-379-1244 or 617-723-7676 or use our contact form.
Tips for Keeping a Safe Swimming Pool in Massachusetts This Summer
Your swimming pool is your backyard oasis, a fun and refreshing place to beat the heat. To keep children and others safe this summer, we urge Massachusetts property owners to secure and properly maintain pools at all times. Take these steps now to help prevent injuries and drownings:
Secure your pool. In Massachusetts, pool owners are required to have fencing which stands at least 48 inches tall. Openings in the fence must be less than 4 inches in diameter. All doors to pool areas must have self-latching and self-closing devices. Homes with doors which open into the pool area must use pool alarms.
Walk around your pool fence now to look for areas which have been damaged. Make repairs right away.
Plan your pool barriers. Slow children down at every opportunity. Safety covers for pools and hot tubs are physical barriers and visual reminders which help keep children out. Remove pool ladders when you leave the pool. Lock them in pool sheds or other secured areas.
You can also place strategic barriers between your house and the pool or your neighborhood and your pool. For example, you could plant tall shrubs to restrict the line of sight from the street.
Landlines, not cell phones. Bring cell phones to the pool just in case. But set them aside so you don’t become distracted by them. Instead, rely on your portable landline phone. This is the best way to call 911. In Massachusetts, 911 calls made on cell phones are typically routed to State Police, then to a local police department or emergency response. You have to assume State Police do not know your location information until you tell them and this may delay response time.
Pool alarms. Purchase a pool alarm that will sound if anyone enters the pool area. There are many different types of alarms, including those which are triggered by movement in the water and others with wristbands you can put on your child. Do your research online and visit your local pool store for ideas.
Supervise children and teach them to swim. If you have children, teach them to swim as soon as you can. Sign them up for swim lessons each year so they continue to grow stronger. Sign yourself up for CPR and review the steps each summer.
Swim with young children, keeping them within your reach at all times. Supervise your children in the pool. If you have to leave the pool area, wait to leave together. No one else will ever watch your children with as much focus as you do.
Guests at your pool and your home. Limit the number of guests you invite to your pool and your home. If you are swimming with guests, your goal is to eliminate as many distractions as possible so you can watch your children and others swim. If you invite children, invite parents too. Watch children closely before and after they enter or exit the pool area.
You always have to be on guard if you invite people over, even if you are not inviting them to use the pool. If a young child was separated from their parents for whatever reason, could that child make it past your pool fence?
Set up an age-appropriate pool area. As children grow, each year is different. Try to delay some of the steps when it comes to the pool. For instance, you can remove your diving board so children will not be tempted. Many pool owners, even those without children, have chosen to retire diving boards because of the risk for serious head injuries if someone slips or hits their head.
Hold off on taking your child into the deep end until they are strong enough. Do not let anyone bring toys with small strings, cords or small pieces into the pool area. Remove rafts which are floating unattended so you can see every inch of the pool.
We are not saying don’t enjoy your pool. Just take it one step at a time and evaluate how you keep and secure the pool area on a regular basis.
Flotation devices. Invest in pool life jackets for your children. Make sure they are “Coast Guard approved.” Check online for reviews and product recalls on the Consumer Product Safety Commission website.
Preventing Drownings and Injuries
As a pool owner, you have a responsibility to keep your pool safe and clear from hazards to guests and children. If someone is injured in your pool due to your negligence, you could be held liable for their injuries.
- Drowning is the second leading cause of unintentional injury death for children age 1-4 (Centers for Disease Control and Prevention (CDC).
- Children under age 5 and those 15-24 have the highest rates of drowning (CDC).
- In 2014, there were 346 fatal drownings of children under 5 years old in the U.S., according to Pool Safely.
Young children are the most vulnerable around swimming pools. But they are not the only ones at risk around water. Summer comes and many of us let our guard down. Drownings can result when someone is swimming alone or without a lifeguard. According to the Centers for Disease Control and Prevention, about 4,000 people die each year by drowning. Adults can reduce the risk for injury by swimming in pairs and avoiding alcohol consumption when they swim. Teenagers should only swim with supervision.
The bottom line is pools are a responsibility. Drownings are 100 percent preventable. We must be vigilant all summer long to prevent drownings and it begins with keeping a safe and secure pool.
About Breakstone, White & Gluck
The Boston personal injury lawyers at Breakstone, White & Gluck have over 100 years combined experience representing those who have been injured in premises liability and swimming pool accidents. If you have been injured, learn your legal rights. For a free consultation, contact our attorneys at 800-379-1244 or 617-723-7676 or use our contact form.
Elevators and Escalators Have Long Been Out of Order at Westwood Train Station
Commuting is a major stress in the Boston area. Having to ride the MBTA should ease the burden. But it often just adds anxiety, especially for commuters at the Route 128/University Station in Westwood.
Two news stories have put the spotlight back on the long-running equipment and system problems at the Westwood station, including out-of-service elevators and escalators. Offering both MBTA and Amtrak train service, the Westwood station serves half a million commuters each year. When systems are running on time, you can take the MBTA into Boston in less than a half hour. The MBTA also offers service to Providence or Amtrak provides travel beyond Rhode Island.
With over 2,500 spaces, the Westwood station is also one of the rare MBTA stops where you can still find a parking space. The problem is walking through the station.
The station is owned by Amtrak, which has frequently closed escalators and elevators over the past few years. One of the two elevators has been out of service altogether for several years. They are in no condition to re-open. According to a recent NBC Boston report, every escalator and elevator has expired state certifications. NBC Boston first reported on the station three years ago, so this isn’t a new story. It is just one which has grown worse.
Amtrak says it has no responsibility to make repairs, citing federal law which exempts it from meeting all state and local building regulations. State officials say they have met with Amtrak, to no avail.
Failure to maintain the escalators and elevators creates a safety hazard for commuters and puts an extra burden on the handicapped. NBC Boston interviewed a rider who was legally blind and spoke about having to climb the Westwood station’s tall staircases. As a result, he has missed his special needs van on some days.
We need to learn from past tragedies on escalators and elevators, including the fall that killed 4-year-old Mark DiBona in 2011. The child fell from a defective second-floor escalator at the Auburn Mall. The escalator had a 6 inch gap, which exceeded state regulations. Lawyers for the boy’s family said the escalator management company was aware of the gap and had filed plans with the town to fix it. But the company never followed up. The little boy suffered a head injury in the fall and died the next day.
Hopefully, the state, MBTA and Amtrak will reach agreement on the much needed repairs at the Westwood station soon. All three have a responsibility to the public and commuters. But it’s also important because another public safety concern has recently arisen at the station.
After a long day in Boston, every commuter just wants to get home. Over the past year, the rush has gotten worse at the Westwood station. Some commuters are now running to their cars to beat traffic backups and 20-minute delays leaving the station.
The traffic backups are a new development. Drivers used to have two choices to pay for parking. They could pay inside the station with their credit card or they could simply drive through the parking garage exit. The parking fee would be deducted from their car’s EZPass. Now, the MBTA requires drivers to stop at the parking exit and select how they want to pay. Meanwhile, traffic lines up and pedestrians are put at risk.
WBZ’s I-Team reported on the parking garage earlier this month. The MBTA said the new system has reduced duplicate charges, resulting in fewer refunds. But things need to change at the Westwood station before there is a serious pedestrian accident.
If you see a safety hazard in any MBTA station, we encourage you to take a photo with your cell phone and report it. You can also report equipment that is out of service for a long period of time.
We suggest reporting the problem to at least two offices – the MBTA and the local police department. A local police department can log your complaint immediately while the MBTA or MBTA police may not respond for a few days.
You can also try submitting complaints to the town officials in the community where the MBTA station is located. Try the local building department, the Board of Selectmen or City Council office. Other resources are the state Department of Transportation, your state representative and your local regional transportation agency. These offices may not be directly responsible for a train or bus station, but it may help to keep them aware of ongoing transportation and safety issues.
Here are a few links:
MBTA Customer Support. This page gives you the option to upload a photo.
Regional Public Transportation Authorities in Massachusetts
Massachusetts Department of Transportation
About Breakstone, White & Gluck
The Boston personal injury lawyers at Breakstone, White & Gluck are experts in handling claims involving premises liability and injuries caused by defective property conditions. If you have been injured by someone’s failure to maintain their property, learn your rights. For a free legal consultation, contact Breakstone, White & Gluck at 800-379-1244 or 617-723-7676 or use our contact form.
Massachusetts Lawmakers Consider Bill to Prevent Insurance Companies from Dog Breed Discrimination
Massachusetts lawmakers are considering a bill to prevent insurance companies from discriminating against homeowners who own certain dog breeds.
Massachusetts lawmakers are considering a bill to prevent insurance companies from discriminating against homeowners based on their dog’s breed.
Rep. Jack M. Lewis (D-Framingham) is the sponsor of H.554, which would ensure dog owners can buy insurance to provide compensation to anyone injured by their pet.
Under the proposed bill, insurance companies would not be allowed to refuse to offer homeowners insurance or renters insurance coverage based on the specific breed of an individual’s dog. The insurer would be prohibited from refusing to issue a policy, renewing a policy, canceling a policy or raising the premium based on the dog’s breed.
The bill provides an exception for a dog which has been designated a “dangerous dog,” by a local community.
At Breakstone, White & Gluck, our attorneys have represented victims of Massachusetts dog bite attacks for more than 30 years. Massachusetts has a strict law when it comes to dog bites. Under M.G.L. c.140 § 155, a dog owner or keeper is strictly liable for injuries inflicted by a dog. Their homeowners insurance policy typically provides compensation to the victim. With the exception of young children, victims have to show they were not teasing or tormenting a dog or trespassing.
Years ago, the cities of Boston, Lowell and Worcester banned certain breeds of dogs, such as pit bills, because they had a reputation for being dangerous. This practice became illegal in Massachusetts in 2012, with passage of St.2012, c.193. Here is a summary of the animal control law written by the Massachusetts Society for Prevention of Cruelty for Animals (MSPCA).
Yet certain insurance companies are still asking about dog breeds. At the State House this week, a representative from the Property and Casualty Insurers Association of America said dogs are the industry’s “single biggest loss.” He was testifying before the Joint Committee on Financial Services.
Meanwhile, the MSPCA supports the Massachusetts bill, saying breed-specific policies are a bad idea. The organization says a better solution is educating the public and dog owners on dog behaviors.
The MSPCA estimates 4.7 million dog bite injuries occur in the U.S. each year, with 800,000 victims requiring medical treatment.
At Breakstone, White & Gluck, we support full compensation for anyone who has been injured by a dog. Young children often suffer dog bite injuries. But others are also at risk. Over the years, our dog bite attorneys have represented clients of all ages who have been bitten suddenly and without warning – including cyclists riding bikes. We have represented clients in the Boston area and across Massachusetts. When a dog bites, medical care is critical – in the hours, days and months following an attack.
This medical care comes with other costs. Victims – or family members – may have to take time off from work to receive medical care and deal with the emotional pain and stress of a dog bite attack. Our attorneys have represented those injured by dogs as well as family members who witnessed the terrifying attack and suffered severe emotional distress as a result. It is a long journey back after a dog bite injury and it’s important for insurance companies to provide compensation.
Our Work for Dog Bite Victims
Read about our results for clients injured by dog bite attacks in Massachusetts.
About Breakstone, White & Gluck
With over 100 years combined experience, Breakstone, White & Gluck specializes in representing those who have been injured by the negligence and wrongdoing of others in Massachusetts. We are experts in handling dog bite and animal attack cases. If you have been injured, learn your rights. For a free legal consultation, contact us at 800-379-1244 or 617-723-7676 or use our contact form.
6 Tips for Boston and Cambridge College Students Who Are Moving Into Off-Campus Housing
Many college students heading to Boston will be living in off-campus housing. The attorneys of Breakstone, White & Gluck share safety tips and resources.
College students are just days away from starting the Fall semester. In Boston and Cambridge, we urge students to make time for an extra lesson on safe housing. Make sure you understand your rights as a tenant and your landlord’s responsibility to maintain a safe property.
Boston and Cambridge have more than 40 colleges and universities. Because of a shortage in dorm space, many students end up in off-campus housing. Unfortunately, some find themselves dealing with unresponsive landlords who want to collect rent, without doing the work to maintain a property. If you are in this situation, it is important to remember that if a landlord is charging you rent, you have the right to a safe and sanitary apartment.
When a landlord is unresponsive and negligent, it can lead to many problems. It can result in sanitary issues, such as mold, rodents or a bug infestations. It can also lead to broken equipment (for instance, a broken smoke alarm, which needs to be addressed right away).
Porch collapses and fires are two of the most common and serious types of premises liability accidents. As a result of landlord negligence, over the past 10 years, five college students have died in off-campus fires in Massachusetts, according to the state’s website.
Attorney David W. White Explains Legal Steps Ahead for Buyers After Dorchester Building Fire
Attorney David W. White is interviewed by NBC Boston on the next steps ahead for buyers after the Dorchester building fire tragedy.
(June 29, 2017) Attorney David W. White was interviewed by NBC Boston on the potential legal options ahead for buyers of condos destroyed by a massive blaze in Dorchester. The fire went up on Wednesday, just a day before a fire inspection was reportedly scheduled.
The six-story Treadmark building had 83 units, including 32 for home ownership and 51 for affordable rentals. It was located in the Ashmont section of Boston’s Dorchester neighborhood.
News outlets report residents planned to move in as early as July and August, but are now left with hard decisions following the tragedy.
“Whenever you have a big fire like this especially when you’re so close to completion, hundreds of lives are turned inside out,” said White, a past president of the Massachusetts Bar Association.
Watch on NBC Boston’s website.
Do You Have Insurance for Your Drone?
More than a million drones were sold this holiday season. If one happened to land in your pile of presents, remember that taking to your neighborhood skies comes with responsibilities. We offer a few reminders about insurance and protecting yourself from financial liability if there is injury or property damage. As a drone operator, you want to make sure that you will be able to pay for damages or personal injury that was caused by your negligence.
Homeowners and Renters Insurance. Start by reviewing your homeowners and renters insurance policies. Then speak to your insurance agent to learn if drone-related accidents are covered.
According to the Insurance Information Institute, drones are most likely covered under these policies. The liability portion of your homeowners insurance may cover you in lawsuits for bodily injury or property damage. Your policy may also provide no-fault medical coverage if someone is accidentally injured by your drone. But there are limits; medical bills for you and family members may not be covered by no-fault medical coverage.
Another reason to have insurance for your drone: If your drone causes bodily injury or property damage, and a claim is brought against you, proper insurance will not only cover the damages; the insurance company will also provide a lawyer to defend the claim against you.
Check with your insurance agent. The insurance industry is actively discussing this topic. Already, some insurers may exclude drone-related accidents from homeowners insurance policies. Others may choose to do so in the future.
Car Insurance. Your auto insurance policy may cover property damage resulting from crash landings or related accidents. Ask your auto insurance agent.
Commercial Users. If you operate a drone for business (even for a part-time business), you should ask your agent if you are covered. This would not typically be covered under your homeowners insurance policy.
Safety Reminders. Never use your drone recklessly and always follow current safety regulations. Drone owners are required to register drones with the FAA and fly at or below 400 feet. Failure to do so could result in a fine. To learn more, watch this safety video from the FAA.
Theft. Consider theft insurance if it make sense. Some drones are small and can be easily stolen. But remember many homeowners have to pay a deductible if they file a claim. If you own an inexpensive drone it will likely be less than your deductible. Maybe it was time to upgrade to the fancier drone anyway.
Memberships. If you do not have adequate coverage, consider your options. You may be able to buy more insurance coverage from your carrier or research other insurance carriers. You may also qualify for coverage if you belong to a membership organization or club. The New York Times reported the Academy of Model Aeronautics offers group liability coverage as part of its $75 per year membership. This may pay for damages after your homeowners insurance policy is exhausted.
Time to Get Started
If you are a drone owner, we hope you take the time to check with your insurance agent so you understand your potential liability. Drone crashes can happen on your property or a neighbor’s property and you want to be prepared.
Here are two resources:
“Getting a Drone as a Gift? Check Your Insurance,” New York Times.
Attorney Marc L. Breakstone Quoted in Massachusetts Lawyers Weekly Article on Antiquated Sidewalk Liability Laws
Attorney Marc L. Breakstone was quoted in a front-page Massachusetts Lawyers Weekly article about common law liability for injuries caused by sidewalk defects. The current common-law standard dates back centuries and prohibits many plaintiffs from recovering compensation for injuries. But a recent Appeals Court ruling may have finally set the stage for change.
Attorney Breakstone welcomes the idea. “I think that the common law is a living body of principles that has to evolve as social conditions and the realities of life evolve,” he said.
Earlier this month, the Appeals Court ruled in the case of Halbach, et al. v. Normandy Real Estate Partners, et al., concurring that a Superior Court judge had correctly granted summary judgment to the defendant, 100 & 200 Clarendon LLC, which operated, leased and maintained the John Hancock Tower and a neighboring garage in Boston.
The Appeals Court rejected the plaintiffs’ argument that the defendant had been negligent in keeping the sidewalk free from defects and had failed to uphold their duty “to ensure a safe pedestrian walkway.”
The Appeals Court said the plaintiffs were suggesting “an entirely new duty” not recognized by state common law. The Appeals Court further noted that there is no affirmative duty to inspect and repair public sidewalks or notify the city.
In Massachusetts, cities generally have limited liability of $5,000 for personal injuries and property damage from defective ways, which also leaves plaintiffs who are injured with limited remedy.
Next Steps
In 2009, a man fell on uneven sidewalk after leaving his office at the John Hancock Tower in Boston. He suffered a bilateral rupture of his quadriceps tendon. After the fall, the defendant, 100 & 200 Clarendon LLC, did make some repairs, with no attempt to seek reimbursement from the city of Boston.
The man and his wife filed a lawsuit in Suffolk Superior Court in February 2012 and filed a motion for summary judgment in January 2014.
Appeals Court Judge James R. Milkey wrote that “the plaintiffs have a more forceful case for … a change in the law than the majority opinion suggests.”
The Supreme Judicial Court could now review the Appeals Court ruling and decide whether to extend a duty for sidewalks to private owners.
Attorney Breakstone told Massachusetts Lawyers Weekly this would be a “baby step for the evolution of our tort law.” It is a widely accepted principle that businesses making a profit from the customers they attract onto their premises have to provide safe egress, he said.
In 2010, the Supreme Judicial Court decision in Papadopoulos v. Target Corp. abolished the common-law distinction between natural and artificial accumulation of snow and ice. In Massachusetts, property owners are now responsible for clearing all areas of their property under the standard of “reasonable care,” regardless of whether they created the snow pile or if it naturally formed.
Read the full article on the Massachusetts Lawyers Weekly website. Subscription required for access.
About Attorney Marc L. Breakstone
Marc L. Breakstone has established a reputation as one of the top medical malpractice and personal injury lawyers in New England. His record-setting settlements and verdicts have earned him the distinction of being selected as one of the Top 100 Super Lawyers in New England and Top 100 Super Lawyers in Massachusetts. He has also been selected by his peers as one of the top medical malpractice plaintiff’s lawyers in the Super Lawyer balloting. In 2002, Attorney Breakstone was honored as one of ten “Lawyers of the Year” by Massachusetts Lawyers Weekly. More on Marc Breakstone.
About Breakstone, White & Gluck
The Boston personal injury attorneys at Breakstone, White & Gluck have over 100 years combined experience handling personal injury and premises liability cases for those who have been seriously injured. If you have been injured, it is important to learn your rights. For a free legal consultation, contact us at 800-379-1244 or 617-723-7676 or use our contact form.