11.28.2016 | In The News

Door opened for SJC to review sidewalk liability

Door opened for SJC to review sidewalk liability

Appeals Court judge: common-law standard may be antiquated

The case involved the control and maintenance of a sidewalk area outside Boston’s John Hancock Tower and a neighboring parking garage.
The case involved the control and maintenance of a sidewalk area outside Boston’s John Hancock Tower and a neighboring parking garage.

Noting that “the world principally looks to private property owners to make sure that the sidewalks bordering their property are safe,” an Appeals Court judge has opened the door for the Supreme Judicial Court to revisit common-law liability rules that apply when someone is injured due to a sidewalk defect.

In the recently decided Halbach, et al. v. Normandy Real Estate Partners, et al., Appeals Court Judge James R. Milkey concurred with his colleagues that Superior Court Judge Robert L. Ullmann had correctly granted summary judgment to defendants who operated, leased and maintained the John Hancock Tower and a neighboring parking garage where a man tripped and fell, suffering a serious leg injury.

The plaintiffs — the man and his wife — argued that the defendants had been negligent in their “ownership, control, maintenance and/or inspection” in keeping the sidewalk free from defects and had failed to uphold their duty “to ensure a safe pedestrian walkway.”

Ullmann concluded the plaintiffs were suggesting “an entirely new duty” not recognized by state common law.

The Appeals Court panel agreed, noting that the “duties of an owner of land abutting a sidewalk or other public way are limited” to a “negative duty” not to “interfere with the safety and convenience of travelers on the public way.”

However, there is no affirmative duty to inspect the public sidewalks and either make repairs or notify the city to do the same, the panel agreed.

Judge Amy L. Blake wrote in the majority opinion that the state common law precedent dates back to at least 1860 and applies “particularly when it is a preexisting defect, not of the owner’s creation, that caused the injury.”

However, Milkey pointedly suggested that “the plaintiffs have a more forceful case for … a change in the law than the majority opinion suggests.”

For starters, he wrote, the current practice of treating sidewalks and highways similarly does not seem to make sense.

“A highway is an unmistakably public space that is subject to the sole control of the public entities with jurisdiction over it,” he stated. “Indeed, a private party who exercised self-help to improve a public street would be far more likely to face arrest than municipal expressions of gratitude.”

Conversely, cities and towns regularly look to private property owners to keep their sidewalks passable and safe, and owners accept that responsibility, Milkey noted.

Milkey agreed that his colleagues correctly stated the long-standing rule under state common law but hastened to add: “Whether to alter that rule is a question that properly falls to the Supreme Judicial Court.”

The 14-page decision is Halbach, et al. v. Normandy Real Estate Partners, et al.,Lawyers Weekly No. 11-165-16. The full text of the ruling can be found here.

Time for a change?

While acknowledging that the Appeals Court felt constrained to apply the long-standing legal doctrine, the plaintiffs’ attorney, Michael B. Bogdanow, said the real question is whether that doctrine still makes sense in 2016 with respect to sophisticated commercial property owners in major urban downtown locations.

“Commercial property owners should not be able to attract the public to their doors yet avoid liability for dangerous conditions over the very walkways that bring people in,” the Boston lawyer said.

Bogdanow said he and his clients are pleased Milkey recognized that, without a change in the law, people injured due to sidewalk defects may be left without effective remedies, “regardless of whether commercial property owners charged with maintaining the sidewalk have violated a duty that they themselves recognize.”

That is because G.L.c. 84, §15, the statute governing personal injuries and property damage from defective ways, caps the city’s liability at $5,000.

Bogdanow and his clients draw some hope from the 2010 SJC decision Papadopoulos v. Target Corp., which abolished the common-law distinction between natural and artificial accumulation of snow and ice and instead adopted a standard of “reasonable care.”

“We hope that the Supreme Judicial Court will seriously consider the thoughtful views expressed in the concurring opinion, and, as it did with the common law rules regarding ice and snow, adopt a rule that applies a standard of reasonable care consistent with tort law principles in the 21st century,” Bogdanow said.

Boston attorney Marc L. Breakstone similarly welcomed Milkey’s entreaty to the SJC.

“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.

Should the SJC decide to extend a duty to private owners for the sidewalks adjacent to their property, it would be a “baby step for the evolution of our tort law,” Breakstone said. 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.

The principle suggested in the Halbach concurrence is that a business does not operate “on an island” but in an urban environment where access is afforded over a public sidewalk, Breakstone said. If the means of access becomes dangerous for some reason, perhaps the business should have a responsibility to correct that dangerous condition, he said.

But Boston lawyer Robert W. Stetson said a better solution may be for the Legislature to raise the liability cap for municipalities, thereby providing an adequate remedy for injured plaintiffs while avoiding complications that would attend to extending a duty of care to property owners.

Were such a duty to be extended, it almost inevitably would lead to conflict — and perhaps litigation — between property owners and the city or town over the nature and scope of the repairs that the property owner would have to perform. Possible pitfalls include whether the property owner would be bound to maintain a certain look or feel to the sidewalk it was repairing; whether the municipality would need to be notified or approve before work begins; and whether such a project would be eligible for any kind of reimbursement.

“You would have the municipal interest in uniformity in effect in conflict with the public interest, perhaps, and the duties of the abutter,” Stetson said.

As Milkey pointed out in a footnote in his opinion, the 1860 SJC case Kirby v. Boylston Mkt. Assn recognized that a city, through its ordinances, could impose a duty on private property owners to keep their sidewalks passable and safe, perhaps outlining in those ordinances the procedure under which repairs are to be conducted and paid for.

Stetson said it was interesting that Milkey noted with seeming chagrin that “case law from another era precludes us from taking judicial notice of the current version of Boston sidewalk ordinances.”

He suggested that could be a roadmap to a middle ground the SJC could strike, imposing a duty on property owners for sidewalk maintenance only when a municipality has “created an affirmative obligation” by adopting local ordinances, presumably after dialogue, debate and notice to those affected.

The defendants’ Boston counsel, Mark B. Lavoie, declined to comment.

Fateful fall

On June 4, 2009, Eric Halbach left his office at the John Hancock Tower in Boston. As he was walking along Clarendon Street near the John Hancock Garage, there was an “abrupt change in elevation” in the poured concrete sidewalk panels, causing him to lose his balance and fall. He suffered a bilateral rupture of his quadriceps tendon.

Defendant 100 & 200 Clarendon LLC owned the parking garage property adjacent to where Halbach had fallen, having acquired it just over a month earlier.

During that month, the new owner had not performed any work on either its property or the adjacent sidewalk, the defendants noted in their brief. However, after the accident, it did pay $798 to grind down the uneven concrete to remove the tripping hazard, and it apparently was uncontested that the business did not seek to have the city of Boston reimburse it for the work.

Halbach and his wife, Kathleen, filed a complaint in Suffolk Superior Court on Feb. 17, 2012. After discovery, the defendants filed a motion for summary judgment on Jan. 29, 2014, on which Ullmann heard oral arguments on Jan. 6, 2015.

The plaintiffs introduced expert testimony from H. Joseph Morrison III, manager of more than 100 commercial properties, who said in an affidavit that industry custom and standards are such that owners and managers of large commercial properties in Boston understand that they are responsible for keeping adjacent public sidewalks free of hazards due to uneven pavement, either by repairing tripping hazards, keeping pedestrians away from the problem spot with cones, or roping off the area and alerting the city about the need for repair.

That expectation is reinforced by specific code provisions, such as the International Property Management Code, which establishes minimum maintenance standards, Morrison noted. He concluded that the defendants had fallen below the standard of care expected of commercial property owners and managers.

Ullmann, however, did not address the expert testimony in his six-page memorandum of decision and order allowing the motion for summary judgment.

A month later, the Halbachs filed their notice of appeal.

Post-accident fix

The defendants argued that it was “axiomatic that evidence of post-accident safety improvements or repairs are not admissible to prove negligence.”

But the plaintiffs said that they were pointing to the grinding down of the pavement after Eric Halbach’s fall not to prove negligence but as evidence of the defendants’ control of the sidewalk.

The Appeals Court panel acknowledged that there are circumstances in which a right to control land may give rise to a duty of care, even for a non-owner, but concluded that this was not one of them.

For one thing, Blake wrote, the defendants’ repair of the sidewalk was “merely an unopposed remedial action.” Also, the city is the “public entity statutorily tasked with control of sidewalk maintenance and repair,” and there was an “elaborate and comprehensive statutory system” establishing its liability.

Milkey, however, parted company with his colleagues’ view that fixing the sidewalk was “merely an unopposed remedial action.” Instead, he said, it was evidence of control, and a common form of it at that.

“Although the responsible behavior that the defendants exercised here in fixing the problem is laudable, it is hardly exceptional,” Milkey wrote, suggesting that the law perhaps should account for the commonly held view about commercial property owners’ responsibilities.

Originally published in Massachusetts Lawyers Weekly, November 28, 2016