Hazards come in all shapes and sizes. In a Massachusetts premises liability action, the injured party must show that the owner or property manager was negligent by failing to clear a hazard. A court will only find negligence if the hazard was something of which the owner or manager knew or should have known. Those responsible for a business or an accessible-to-the-public property must use reasonable care in maintaining the premises.
The Appeals Court recently issued an opinion in a recent decision (16-P-1067), looking at whether or not the Superior Court judge erred by granting summary judgment for the defendants in a premises liability action. The plaintiff lived in a condominium complex and injured herself after tripping over a bent marker stake. The snow removal service contracted by the owner of the condominium complex used stakes to mark certain landscaped areas in order to minimize damage to the land. One of these stakes was near a walkway and was bent. The injured party noticed the stake two weeks prior to the accident but did not report the stake to the condominium trust or the owner. No other reports by residents were made to either defendant before her accident related to the bent stake. The injured resident passed the stake three times in the same day prior to the accident, noticing that it was bent but not protruding onto the walkway. The injured resident asserted that when she tripped on it later in the evening, the stake was protruding over the walkway. The injured resident filed suit against the condominium owner, the condo trust, and the company contracted for snow removal, alleging they failed to use reasonable care in maintaining the condominium property.
In its review, the appellate court looked at whether the defendants knew of the hazardous condition at the time of the resident’s injury. The court did not feel the defendants had actual or constructive notice, based on the absence of any reports made by the plaintiff, another resident, or a visitor on the property. The lower court ruled that just because the bent stake went over a walkway does not mean those responsible would or should have had notice of the dangerous condition. The appellate court noted that the defendants must also have had a reasonable opportunity to discover and remedy the hazardous condition. Defendants do not breach their duty to use reasonable care if they do not have this opportunity to correct. The Appeals Court ruled there was not one in this case and affirmed the summary judgment of the lower court.
This case may leave the impression that injured parties have little chance of success with their burden of proof. However, each slip and fall case is unique, and other cases show sometimes a plaintiff has an easier time proving there was constructive knowledge. In another case, for example, the court determined that an injured party may seek recovery from a business that used a self-service mode of operation. The plaintiff tripped over a rock in an aisle that was not for sale. The appellate court determined that in this instance, it did not matter if the store had no actual knowledge of the hazard. The court reasoned that the self-service style of operating meant the store always had constructive knowledge. The business should have known that this type of accident could occur and taken measures to check and clear hazards.
If you’ve been injured in a slip and fall, contact the Massachusetts premises liability attorneys at Karsner & Meehan. Our attorneys have the experience you need to try your case. Contact our office today to see which types of damages may be available to you at 508.822.6600.
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