Articles Posted in Premises Liability

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Many Massachusetts businesses rent space from another entity to use for their business, along with parking and walkways for customers and employees to use. When a slip and fall injury occurs, liability can stem from either the business or the property owner or both. If another entity were in charge of maintaining the premises, that company may also share in the liability for an injury. As with all personal injury lawsuits, liability exists when a duty is owed by the alleged party responsible for the injury. When more than one defendant is involved, it can be challenging to sort out liability and damages.

An Appeals Court of Massachusetts decision looks at whether or not jury instructions in a a slip-and-fall lawsuit involving two defendants were improper. Slick parking lotThe injured party argued that the instructions did not accurately reflect the law governing whether the defendants’ conduct was the cause of her harm. She was originally injured in a slip and fall in a parking lot outside a restaurant. The building was leased by the restaurant from the co-defendant company, which was also responsible for the repair and maintenance of the parking lot. The injured woman filed suit against both the restaurant and the property owners. At trial, the jury determined that the restaurant was not negligent. It also found the property owner to be negligent but not a “substantial factor” in causing the customer’s injury. The injured person moved for a new trial, which was denied, leading to this appeal.

In cases involving multiple causes, courts use the “substantial contributing factor” test when it is difficult to ascertain that any of the individual defendants was the main source of the harm – even when you know the defendants’ behavior, as a whole, caused the harm. The judge presiding over the trial applied this test, which was reflected in the jury instructions. In the court’s analysis, the appellate court found that the instruction was proper with two defendants, especially since the plaintiff had a pre-existing condition. The appellate court also disagreed with the injured person that there was not enough evidence for a verdict favoring the defendants.

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In a recent Appeals Court case, the court looked at whether or not a business was responsible for taking care of the abutting sidewalk. For any personal injury lawsuit to move forward in Massachusetts, the injured person must show that the defendant owed him or her a duty under the law. Businesses must use reasonable care to keep their premises safe. In this premises liability lawsuit, the question centered on what the scope of responsibility was for the defendant businesses.

The injured person fell on black ice outside a commercial area and filed a negligence action against parties connected to the business abutting the sidewalk. The defendants moved for summary judgment, arguing that there was no duty upon them to reasonably maintain the sidewalk for the injured pedestrian. Slippery sidewalkThe defendants also argued that there was no proof that they created the unsafe conditions on the sidewalk. The trial court agreed, dismissing the action. The appellate court took up the injured pedestrian’s appeal, affirming the lower court’s ruling.

In its decision, the Appeals Court pointed to the local ordinance, which places a limited duty on landowners to remove snow and ice from adjacent sidewalks. The appellate court stated that the businesses owed a general duty to the municipality but not specifically to injured pedestrians. The court hinged its distinction on a prior 2010 ruling in Papadopoulos vs. Target, 457 Mass. 368 (2010). This case also involved a slip and fall on a patch of ice in front of a store. The injured pedestrian also filed suit against the store and the maintenance company. The main legal issue revolved around the “Massachusetts rule,” which distinguished between natural and unnaturally accumulated ice. The court chose to abolish that distinction, but it did emphasize the duty property owners have to take care of their property. That summary judgment for the defendants in Papadopoulos was vacated, but the Appeals Court in the present case distinguished that case by the fact that the injury occurred on the property, in the parking lot, as opposed to on a public sidewalk. The court in this case ruled that the defendants owed no duty of care to the injured pedestrian and that there was no reasonable chance to prove that the black ice was caused by the businesses. The dismissal stayed in place.

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When an accident occurs outside a business on a walkway, it can be initially difficult to tell who is responsible for a walkway when there are hazards. A recent Appeals Court case, Halbach v. Normandy (15-P-1500), discusses how liability is determined when the sidewalk right outside a business actually belongs to the city or another property owner. In this case, the injured man suffered serious injuries after he fell on uneven pavement outside a parking garage.  broken sidewalkThe sidewalk was public property. The building was maintained by a separate group, which the injured man alleged was responsible for repairing the sidewalk or warning pedestrians of any hazard.

The managing company moved to dismiss, and the trial court granted it. To prove negligence occurred, one must show that a duty existed under the law. Under premises liability case law, the owner or manager of a business must use reasonable care to protect guests from harm. However, the scope of the duty created only extends to areas for which the business is actually responsible. The lower court ruled in this case that the managing company did not owe a duty to the injured pedestrian. The appellate court looked at whether the lower court was correct in its determination and also addressed whether the scope of the duty should be extended.

The injured pedestrian tripped and fell near a garage. The pavement was uneven on the sidewalk owned by the city, which was adjacent to the garage maintained by the defendants. After the accident, the managing company hired someone to grind down the uneven pavement. The injured pedestrian initially argued that the managing company exercised control over the sidewalk, and because of this control, it owed a duty to the injured party. The Appeals Court pointed out that the duties of an owner of property abutting a sidewalk or another public way are limited. Case law states that an owner cannot create a hazardous condition that could interfere with travel but does not have an affirmative duty to keep a public sidewalk clear.

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Duty is a term that one may hear frequently in a personal injury lawsuit. In any negligence action, it is one of four elements that must be proven at trial to hold a defendant liable for her, his, or its actions. The duty to act in a certain manner to ensure the safety of others is often created by statute. However, certain duties are strengthened or lessened by case law formed by one or more appellate decisions. Pub Chairs This can be seen in a recently issued wrongful death case, Bernier vs. Smitty’s Sports Pub, Inc. (No. 14-P-1967).

In this case, the decedent patron had entered the rear entrance of a pub. He opened a door with an “Employees Only” sign, thinking it was the bathroom. The bathroom’s door and the “Employees Only” door looked similar. However, the “Employees Only” door opened into a concrete staircase with a large drop. This door was typically locked during business hours but was unlocked at this time, causing the man to fall and injure himself. The man died a couple of weeks later as a result of his injuries. His estate filed suit against the pub, alleging negligence, and a jury found the pub to be 80% negligent and the deceased to be 20% negligent.

The pub appealed, arguing that they did not owe a duty to the man because he was a trespasser. Under case law, a landowner owes a duty to those it invites onto its property. The premises must be maintained in a reasonably safe condition, with the owner acting as a reasonable person would act. A court will consider the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk. However, if the person is a trespasser, this duty disappears. A landowner is only required to refrain from reckless or wanton conduct that could cause harm to a trespasser. A trespasser cannot file a negligence action against the owner of the property.

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The Commonwealth’s Appeals Court recently reversed and remanded a personal injury lawsuit originally dismissed by summary judgment in favor of the business. In Belanger vs. Boys in Berries, LLC (15-P-1263), the injured customer fell when she tripped on a large octagonal cardboard box and pallet at the end of the checkout counter. The box was visible from the checkout line, but the pallet underneath was hidden from view. Testimony during trial revealed the injured customer commented on the shape of the box. After the customer paid for her items, she caught her right foot on the corner of the pallet, seeing it only seconds before contact. She fell down, injuring her hip and shoulder. Even though the box had arrows to help warn about the pallet, the warnings were obscured from the sightline of anyone standing in the checkout line. palletsThere was a large crate of melons near the pallet and box, but there wasn’t any debris on the floor, nor was there poor lighting.

Property owners must maintain their property in a reasonably safe condition. They must consider the likelihood of injury to others, the seriousness of the injury, and the burden to avoid the risk. If there are unreasonable dangers, the property owner must warn any visitors of those dangers if they are aware or should have been aware that they exist. The exception to this is if the danger itself was open and obvious. The appellate court, in its analysis, pointed out that the pallet use itself wasn’t necessarily unreasonably dangerous, but its placement could be. The court looked at Massachusetts case law regarding whether a landlord is liable for the negligent placement of an obstruction in a common area. The court felt a reasonable jury could have found that the store created an unsafe condition by placing a box on top of a pallet in the path from the checkout line to the exit.

The appellate court also felt that the evidence at trial presented a legitimate question of whether the pallet fell under the case law exception as an open and obvious danger that did not require a warning. The court felt there was a possibility that a reasonable jury could find that the box wasn’t really visible until a customer turned to exit the store, so it was not an open and obvious danger. Since the evidence available to the jury presented genuine questions of fact, the Appeals Court felt that the evidence was just strong enough to survive summary judgment. The ruling in favor of the defendant store was reversed, and the case was remanded.
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A large number of premises liability cases arise from situations like slip and falls or hazardous passages. In both of these situations, the owner or manager of a property or business is liable when she or he fails to exercise reasonable care for the safety of the invited public. A recent Appeals Court case, Wess v. Butterworth (14-P-1790), addresses a different type of premises liability case. Here, the court assessed whether the jury instructions were an adequate reflection of the law that creates a duty for landlords to use reasonable care to guard against the foreseeable wrongful and criminal acts of third parties. In this case, the injured man was stabbed by an estranged friend who entered the building without authorization. The injured man alleged the landlord was negligent because the apartment building doors had locks but no peepholes, intercom, or buzzer system to help identify anyone on the other side of the door.

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The injured man and his wife filed suit against the landlord of the property, complaining of serious physical and psychological injuries. The case proceeded all the way to trial, where the jury found that the landlord had been negligent, but her negligence was not the proximate cause of the harm to the plaintiffs. The verdict returned was ultimately in favor of the defendant, and the injured man and his wife appealed. On appeal, the couple argued that the judge erred by not giving a requested instruction regarding the definition of proximate cause and superseding cause.

The requested instructions included a recitation of the law described above – that the failure of the landlord to use reasonable care to guard against the foreseeable wrongful and criminal acts of third parties may result in a breach of the duty to exercise reasonable care. The appellate court agreed that the proposed instructions reflected the law and could even have included the established law that the specific criminal act did not need to be foreseeable, just the type of crime. The appellate court determined that the supplemental instruction given to the jury accurately described proximate causation and went on to charge that the injured man did not have to foresee the exact manner in which the harm occurred, but the harm he suffered must have been a natural and probable consequence of the defendant’s negligence.
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In Draper v. Francesco Demolition, Inc. (15-P-702), the Commonwealth’s Appeals Court reviewed a directed verdict made during trial in favor of the defendants in a personal injury action, determining whether an injured man contracted bacterial pneumonia as a result of the defendants’ negligence. In this case, the focus was whether the injured man presented enough proof to show his injury was caused by the defendants. In its analysis, the appellate court affirmed the trial court’s determination that the injured man needed some sort of expert testimony to help the jury distinguish between his pre-existing condition and the injuries caused by the bacterial pneumonia alleged to have been caused by the standing water.

leaves puddleDraper centered around proof of causation, which is one of the four elements in any personal injury action. The four elements in a negligence lawsuit are commonly known as duty, breach, causation, and damages. A defendant cannot be held liable unless she or he owes some sort of duty under the law to the injured party. The injured party must then show that the duty was breached and that the breach was the cause of the injury. Proving causation at trial can be accomplished in many ways, depending on the situation. People who witnessed the scene can be called to testify. Professionals can be called to testify about their field of expertise to help the jury understand a complicated engineering or medical concept. Pictures and research can also be utilized to help illustrate certain ideas or a sense of the place where the injury occurred.

The appellate court in Draper looked at the injured man’s health and lifestyle, which included tobacco and alcohol use, prior lung disease, a pre-existing heart block, and a need for a pace-maker. During trial, the injured man chose not to introduce any medical records or expert testimony. He also chose to change the injury from pneumonia to an unidentified illness, even though the defendants used a medical expert who testified it was pneumonia and caused by his collection of pre-existing conditions. The injured man claimed he was going to rely on his own testimony, his wife’s testimony, and a witness, but that was not enough for the trial court or the Appeals Court.
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When an accident occurs in Massachusetts, it is not always immediately clear who should be held accountable for the injuries. Sometimes multiple parties are jointly liable, and other times one party may initially appear liable before being absolved through the litigation process or trial verdict. For example, if someone is injured by tripping on an object in a shopping mall, there may be liability due to the negligence of an employee of one particular store. old-gate-1456693-640x480.jpgThis may be shared by the owner of the entire premises because a separate maintenance employee failed to clear the obstruction. Juries often divide liability, as well as the percentage of damages paid to the injured party, so it is important to file suit against all possible responsible entities.

In any situation, there may be additional relevant statutes that limit the amount of time an injured person has to provide notice of her or his intent to sue. The Appeals Court of Massachusetts recently issued an opinion, Landry vs. Mass. Port Auth. (15-P-253), which reviewed a delivery man’s action against two municipal entities for injuries he sustained at the regional airport. In this suit, the defendants jointly filed for dismissal, pointing to G. L. c. 84, § 18, which requires notice to file suit against a municipal entity within 30 days, if the injury happened in a right of way.

The deliveryman had been making deliveries of cleaned uniforms to the airport for several years, often with airport employees escorting him through the gates to his drop-off point. In the year before the accident, this procedure changed, and he was directed to park his truck in a certain location and walk through a remote-controlled gate to his drop-off point. On the date of his injury, the gate was partially opened but abruptly stopped after opening 3-4 feet. After waiting for some time, without further instructions from someone controlling the remote, he proceeded through the opening with the uniforms over his shoulder. He did not have much clearance to make it through, since a steel bar that was part of the gate was also in the way. The gate began to close while he was walking, causing him to suffer a fractured sternum. The man could not work for two months. The delivery man later learned from airport employees that this mechanized gate had been malfunctioning for a while.
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In a recent decision, Amaral vs. Seekonk Grand Prix Corp. (13-P-1848), the Commonwealth’s Appeals Court reviewed whether or not General Law, Ch. 21, Section 17C(a) barred a claim of negligence by a mother who was injured by a runaway go-cart while watching her sons. cart-1477926-639x411.jpgThis law is known as the “public use statute,” which states that those who make land available to the public for recreational purposes without charging a fee shall not be liable for personal injuries sustained by members of the public, unless there is willful, wanton, or reckless conduct by the landowner.

Under general premises liability law, a shop or other place of business is expected to keep their premises reasonably safe for patrons. If a hazardous condition exists that the owner or manager knew or should have known about, the business may be held liable for injuries sustained by a patron. The Massachusetts public use statute limits the owner’s duty to members of the public, and it increases the burden of proof that must be shown by the injured person to recover damages.

The corporation that operated the recreational facility did not charge admission to the grounds, but it did sell tickets to rides on the property. The injured woman had purchased tickets for her sons to ride go-carts, and she was watching them drive the go-carts on the other side of a chain link fence. A go-cart driven by a little girl went through the fence at the end of a run and struck the woman, which resulted in several injuries, including a pulmonary embolism from a blood clot in her left leg.
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Whenever you visit businesses in Massachusetts, the owners and managers of the property are expected to keep the premises reasonably safe for customers and members of the public. If a business fails to do so, they could be held liable for damages suffered by anyone injured. The injured party must show that there was an unreasonable danger that the owner knew or should have known existed. linna-hotel-imatra-finland-1234584-639x852.jpgThis can be proven by the injured party showing that the business or its employees created the dangerous condition, were made aware of the condition, or should have seen the dangerous condition.

For example, a person injured in a grocery store may be able to rely on a witness who either saw or created a spill in the store and then made the management aware of the spill. If the spill was not cleaned up in a timely manner, and it caused the injured party to fall, the witness testimony could be used by the injured person as proof of negligence. Another example of proof in a premises liability case would be records kept by the store of checks performed by maintenance staff throughout the day. If a spill or foreign substance was left for hours in an area checked at regular intervals, and during this time a maintenance worker should have seen it, the business may then be held liable for the spill because even though it was not “known” like the first example, the business should have discovered the spill during one of the routine maintenance checks.

In Stewart vs. Five Bridge Inn, LLC (14-P-1878), the Appeals Court of Massachusetts reviewed whether or not there was enough proof of negligence to hold a hotel liable for a woman’s injuries. The woman was a guest at a wedding and was walking toward the venue when she fell, fracturing two main bones in her leg. The woman alleged in her suit that her fall was caused by an irregularly sized rock embedded in the gravel parking lot. However, the woman also stated that she didn’t know why she fell and whether the rock played any role in her fall. The Superior Court determined that the woman did not connect her injury in the fall to any negligence by the hotel, and it entered a summary judgment in favor of the hotel. The Court of Appeals agreed and affirmed the lower court’s decision.
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