By
Edward M. Bloom
Under Massachusetts common law in effect
since 1860, property owners have no duty to repair or warn of hazards on an
abutting public sidewalk.
This long-established rule was recently
addressed by the Massachusetts Appeals Court in Halbach v. Normandy Real EstatePartners. In this case, the plaintiff, Halbach, suffered serious injuries as a
result of his fall on uneven payment on the public sidewalk adjacent to the
John Hancock Garage, a commercial parking garage on Clarendon Street in Boston.
Halbach sued the owners of the garage and its property manager, claiming that
the defendants were negligent in their “ownership, control, maintenance and/or
inspection” of the sidewalk and their “failure to keep … the walkway free from
defects and conditions rendering it unsafe.” Defendants were granted summary
judgment by the trial judge based on the long-standing Massachusetts rule,
referred to above.
On appeal, the trial judge’s ruling was
upheld by the Massachusetts Appeals Court, even though there was evidence that
the property manager corrected the uneven pavement after Halbach’s fall. In a
concurring opinion, Judge Milkey suggested that the SJC might want to alter the
common law rule, and stated that his separate opinion was written “to note that
the plaintiffs have a more forceful case for such change in the law than the
majority opinion suggests.”
Judge Milkey, while conceding that
public sidewalks are treated as part of the public highways, and that town ways
shall be kept in repair at the expense of the town where they are situated,
cited the fact that municipalities regularly look to private property owners to
keep sidewalks adjacent to their property free from snow and ice so that they
are passable and safe. In addition, he pointed out that most commercial
property owners accept responsibility for adjoining public sidewalks, as
evidenced by the property manager’s repair of the sidewalk after Halbach’s
accident. “In short, at least in the context of commercial property, the
reality is that the world principally looks to private property owners to make
sure that the sidewalks bordering their property are safe. It is far from
self-evident why – under modern tort principles – the law should not follow
suit.”
Despite Judge Milkey’s ardent
recommendation that the SJC reconsider the common law rule regarding public
sidewalks, the SJC denied further appellate review this past April.
So where does this leave individuals
like Halbach who are injured on public sidewalks? Under G.L.c. 84, §15, the
maximum recovery for a private party against a Massachusetts city or town for
injuries due to a defect on public ways is $5,000.00. On the other hand, many
cities and towns like Boston have enacted ordinances requiring owners to clear
snow and ice from the abutting public sidewalks. What if the individual is
injured because an abutting owner failed to keep the sidewalk free from snow
and ice in violation of a municipal ordinance requiring its removal? While
generally a violation of a statute or ordinance is evidence of negligence, it
has been held that ordinances which require abutting owners to remove snow and
ice from sidewalks are for the benefit of the community at large and not for
persons who fall as a result of unremoved snow and ice. “Any obligation imposed
by the ordinance runs to the municipality and not a member of the travelling
public.” Gamere v. 236 Commonwealth Ave. Condominium Assn, 19 Mass. App. Ct. 359,361 (1985).
Unless the SJC has a change of heart and
revises the existing common law, as suggested by Judge Milkey, it would seem
that the best way to provide relief to individuals like Halbach would be for
the Legislature to enact a statute imposing responsibility for the repair and
maintenance of public sidewalks on abutting owners, or at least on commercial
owners. Such legislation could be challenged because, according to the Gamere
case, it is the responsibility of cities and towns to keep the public ways in
reasonably safe condition for travelers and that duty may not be delegated to
others. Alternatively, the Legislature could amend G.L.c. 84, §15 either to
increase the maximum recovery permitted to injured individuals or to abolish
altogether the $5,000.00 cap that currently exists.
Given the current shortfall of revenues
for the Commonwealth and its various cities and towns, the travelling public
should best traverse carefully over those cracks and defects in public
sidewalks.
Originally posted June 5, 2017 on the Sherin and Lodgen Blog.
Originally posted June 5, 2017 on the Sherin and Lodgen Blog.
A former president of the
Association, Ed Bloom is a partner at Sherin and Lodgen LPP, practicing in the
firm’s Real Estate Department. He concentrates on development, sale, leasing,
and mortgaging of residential, office, shopping center, industrial, and
condominium properties. Ed can be contacted by email at embloom@sherin.com.
