Articles Posted in Premises Liability

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Generally speaking, a property owner does not have a duty to prevent dangerous or harmful acts of third parties. Under Massachusetts personal injury law there is an exception to the general rule, in that a property owner can be held liable for ignoring criminal activity it knew or should have known was occurring on the premises. In Charles Northrup v. National Amusements, the Appeals Court of the Commonwealth of Massachusetts recently clarified that a property owner will only be liable for a criminal act occurring on its property if it had knowledge of prior similar acts.Legal News Gavel

In Northrup, the Plaintiff was sitting in his vehicle in the parking lot of the Defendant’s movie theater, when he was stabbed by an individual suffering from schizophrenia and other mental illnesses. Plaintiff subsequently sued the Defendant for negligence, alleging the Defendant’s failure to provide police protection on the premises caused his injuries. The Defendant filed a Motion for Summary Judgment, arguing the stabbing was not foreseeable. The trial court granted Defendant’s Motion and Plaintiff appealed. On appeal, the Appeals Court of the Commonwealth of Massachusetts affirmed.

The court noted that while police reports indicated there were thirty incidents at the movie theater in the three years prior to the incident, only three of the incidents resulted in an arrest, and only one incident involved a violent act. The remainder of the incidents involved theft and other property crimes. Additionally, the internal incident reports written by the Defendant indicated there were seventy-one incidents in the three-year period prior to the stabbing. While most of the incident reports did not indicate any criminal activity, four of the reports indicated violent acts, including one report of an incident in which rocks were thrown at children when they were leaving the theater.

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The owner and manager of an apartment building attempted to extend the umbrella of immunity under the Tort Claims Act, G.L. c. 258 Sec. 2 to avoid liability for a serious injury Massachusetts slip and fall accident.  A resident of a public housing development fell while descending the stairs in his apartment building.  He filed suit against the city’s housing authority, the company that owned the property, and the company that managed the property.  The owner and manager moved for partial summary judgment, asserting they were public employees.  The motion was denied and the defendants appealed.

The Massachusetts Torts Claims Act arose out of a case law precedent known as “sovereign immunity”.  This legal concept shielded the government from liability if someone was injured as a result of the negligence stemming from a governmental agent.  The Massachusetts legislators created the Tort Claims Act to delineate when this privilege applied and when exceptions to this privilege occurred.  While the Act increases the ability for an injured person to Legal News Gavelfind legal relief, public employees are shielded from liability.  The defendants in this suit argued they were public employees as “controlled affiliates” for a housing authority apartment complex.  The controlled affiliate of a local housing authority is an entity with the power to own and manage residential real property which is within the legal control of the housing authority.  The trial judge found controlled affiliates do not fit within the scope of the definition of “public employee” found within the Tort Claims Act. 

The defendants came into their respective positions in 2009, when the housing authority realized the rehabilitation project costs exceeded the public funds available to them.  The project was partially financed through five other sources, including an equity investment seeking to take advantage of the Federal Low Income Housing Tax Credit program.  The tax credits are available to investors providing funds for qualified low income housing projects with rent restrictions and a minimum share of rental units for moderate and low income households.  The housing authority cannot utilize these tax credits, so in order to keep outside investors on board, they “sell” the use of these credits and transfer the ownership of the housing project to a “controlled affiliate”.  The apartment complex in this suit was transferred over to the owner, giving him 99.99 percent ownership interest and the manager, giving him .001 per cent ownership interest. 

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If an accident occurs, both parties will likely look to insurance policies for coverage of a claim. The at-fault party, in particular, expects his or her insurance company to step in and defend the claim for them, shielding them from full personal liability. This is known as indemnification. The Appeals Court of Massachusetts recently looked at whether or not an insurance company providing a homeowner’s policy was obliged to defend or indemnify the policyholder’s son in a Massachusetts personal injury lawsuit filed by someone who was punched in the face by the son while in the homeowner’s home. The injured person filed suit against the son, alleging the insured’s son struck his face, causing Legal News Gavelserious and permanent injuries.

The father was insured under a personal umbrella liability policy in addition to his homeowner’s policy. The insurance company, after notice of the incident and lawsuit, moved for a declaratory judgment by the trial court to establish it had no duty to defend or indemnify the son. The trial court granted the motion, and the homeowner appealed. The appellate court reviewed the findings for clear error and for a ruling on the questions of law.

The Appeals Court first assessed the testimony of three witnesses who were present during the altercation. Their testimony resulted in finding the son hit the personal injury plaintiff three times in the face with a closed fist. This knocked him unconscious and led to further injuries after he hit his head on the pavement as he fell. The plaintiff sustained fractures in his face, jaw, and skull, developing a seizure disorder. In its assessment of whether or not this type of incident was something covered under the homeowner’s policy, the trial court determined the incident was not an act of self-defense nor an accident. The court found the son acted intentionally with the purpose of causing the other man injury.

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If you are injured while at a construction site, the remedies and damages available to you may be multiple and varied. You may be able to receive workers’ compensation from your employer if you worked on site, as well as pursue damages from any independent contractor if multiple parties were responsible for the conditions that led to the injury. Many companies provide the monetary damages to the injured person by tapping their insurance benefits obtained for this exact scenario. Companies also look to the insurer to indemnify Legal News Gavelthem, or step into their shoes for the purpose of defending litigation. If an insurer refuses to provide funds, the injured person must hope the company has assets, or the ability to obtain them, to satisfy any judgment in her or his favor.

The Commonwealth’s Appeals Court recently affirmed a summary judgment granted to a corporate insurer who refused to indemnify its insured for a personal injury verdict against the company and its independent contractor in a Massachusetts construction accident case. The independent contractor appealed, arguing the insurer failed to preserve the right to exclude independent contractors during the original tort action and cannot raise it now. The contractor also argued the exclusion within the policy is ambiguous and must be construed against the insurance company. It also alleged the exclusion did not apply in this circumstance because the accident was actually caused by the policyholder.

A woman injured herself at a construction site while walking on a sidewalk, tripping and falling on a cold joint built by the independent contractor. The contractor was hired to construct the sidewalk in a residential housing project. The contractor ceased paving just short of a driveway and built a “cold joint,” or space between two batches of concrete set at different times. The injured woman sued both the independent and general contractors of the project for the negligent construction of the cold joint and failure to warn of the defect. At trial, the jury found for the injured woman, finding the independent contractor to be 55% at fault and the general contractor to be 30% at fault. Since the insurer refused to indemnify the general contractor for the judgment, the independent contractor (using its insurance policy) satisfied the full amount.

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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.Legal News Gavel 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.

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When personal injury cases are filed against a government entity, an injured person faces challenges unique to this type of defendant. Case law in Massachusetts and elsewhere grants governmental bodies immunity from civil lawsuits. The idea is that the government body should not be distracted by civil litigation defense so that it can focus on the daily needs of the community. General Laws c. 258, § 10(j) grants public employers immunity from tort actions based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the conduct of a third party. Many exceptions, however, have been also been codified by the legislature in the Commonwealth’s general laws, providing opportunities for injured parties to be granted legal and financial relief. Legal News Gavel In a recently issued case (16-P-1308), the Appeals Court reviewed the defendant city’s argument that it was shielded from liability under sovereign immunity.

This case was filed after a teenager died from drowning in the swimming pool at the local high school. The teen had left his home at 8:00 in the morning to go to the school to turn in paperwork for the upcoming school year. The school was not open on this date. Security cameras revealed that a little after 10:00 AM, the teen was inside the school in a hallway close to the pool. The footage revealed he was in the weight room and then the girls’ locker room, which has a door that exits directly to the swimming pool. At 5:30 PM that day, a swim coach found the teen’s body at the bottom of the pool. Emergency personnel pronounced the teen to be dead at the scene.

The estate of the teen alleged he suffered a wrongful death due to the city’s negligent maintenance of school property, and the site itself was an attractive nuisance. The complaint specifically alleged that the doors and locks to the pool area were not properly secured. The city claimed sovereign immunity and sought dismissal, alleging the exception did not apply in this situation. The trial court agreed with the estate’s argument that this fell under the exception found in G.L. c. 258 § 10(j), which states that sovereign immunity does not apply when there is negligent maintenance of public property.

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In Massachusetts premises liability cases, the injured person must show that the owner or manager of a property failed to uphold the duty to use reasonable care to keep the premises safe. Typical scenarios are when someone slips and falls on a substance or harms themselves because of a hazardous condition. The injured person must show that the owner knew or should have known about the substance or condition, in addition to demonstrating the owner or manager had the duty to either remove the hazard or warn patrons.

In a recent decision, Simas vs. Starwood Hotels & Resorts Worldwide, Inc. (16-P-158), the Massachusetts Appeals Court looked at whether or not an amended pleading was appropriately denied in a hotel slip and fall lawsuit. The injured man fell in the shower during a stay. The injured guest initially alleged that the defendants were negligent by allowing a defective soap and shampoo dispenser to remain in the room he occupied.  Legal News GavelMore than a year after the case was filed, the defendants moved for summary judgment against the injured hotel guest. Six months after this motion was filed, the injured guest attempted to amend his complaint, switching from the argument that the defective soap dispenser leaked soap, causing him to fall, to alleging the hotel was negligent in their design, construction, and maintenance of the shower floor. The amended complaint also alleged the hotel’s shower floor did not meet the reasonable standards of slip resistance, and the hotel was negligent by failing to provide a bath mat or grab bar to prevent slipping.

The trial court denied the motion to amend, arguing that an amendment changing the theory of liability two years after filing would unduly prejudice the defendants. The injured guest pursued a defense against the summary judgment, which caused a further delay in the proceedings. The injured guest pointed to architectural drawings found in the discovery that revealed the hotel’s intent to renovate the bathrooms in order to make them compliant with the Americans with Disabilities Act (ADA). The appellate court acknowledged how that may have factored into the injured man’s decision to amend the complaint, but it pointed out that the discovery with this information was available early in the proceedings. The court did not feel that this excused the prejudicial delay. The appellate court pointed to the lack of information with the amended complaint that would have enlightened the trial court as to whether the modifications to the bathrooms specifically addressed slippery bathtub surfaces. The court cited Massachusetts case law, which permits a trial court to deny a motion to amend if there’s an unexcused delay.

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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. Legal News GavelThe 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.  Legal News GavelThe 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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