No Man’s Land: Liability for Defects in a Public Sidewalk in Massachusetts

Liability of Cities and Towns

For nearly two centuries, cities and towns in Massachusetts have been statutorily tasked with control of sidewalk maintenance and repair as part of an elaborate and comprehensive statutory system establishing municipal liability for injuries resulting from defects in public ways. The statutory scheme requires notice of injury to the municipality and caps recoverable damages at $5,000. In accord with this designation of municipal liability, the common-law recognizes that an owner of land abutting a sidewalk or other public way is charged only with a negative duty to refrain from creating an unsafe condition on the public way, but no more. However, in a recent case, an Appeals Court judge, writing in a separate opinion, criticized the law as archaic and in conflict with modern reality.

Property Owner Abutting a Sidewalk

In that case, the Plaintiff was walking on the sidewalk between his office and a parking garage when he tripped and fell over a defect in the sidewalk abutting the garage and sustained serious injury. Following the accident, the owner of the garage repaired the defect. The Plaintiff sued the owner of the garage arguing that the owner had control of the sidewalk and had accepted responsibility for the condition of the sidewalk as evidenced by his repair. The Plaintiff contended that the owner, therefore, owed him a duty of care to keep the sidewalk in a safe condition. Citing the law that has long existed making only municipalities liable for defects in sidewalks, the trial court judge granted summary judgment to the garage owner and the Plaintiff appealed. In affirming the judgment, the Appeals Court also relied on settled law that there was no affirmative duty on landowners to inspect the public sidewalks adjacent to their land. The facts, which were not in dispute, also established that the defendant garage owner had not created the defect.

No Effective Remedy in Massachusetts

Although agreeing with the decision based on the current state of the law, the separate concurring opinion of one judge noted that in the modern world municipalities regularly look to private property owners to keep sidewalks adjacent to their property passable and safe and, at least as to commercial property, the owners themselves accept that responsibility as was indicated by the garage owner’s subsequent repair of the sidewalk. The judge noted that the law of other states had already recognized the duty of property owners to keep an abutting sidewalk in reasonably good condition. He also remarked that some municipalities in Massachusetts even impose an obligation on abutting owners to keep sidewalks adjoining their property in good repair and clear of snow and ice. Finally, the concurring judge contended that without a change in the common-law liability rules, or legislative change to increase the statutory cap on municipal liability, parties injured by a sidewalk defect may be left without an effective remedy, regardless of whether the private property owners charged with maintaining the sidewalk have violated a duty that they themselves recognize. The case is now on its way to the Supreme Judicial Court, who will decide whether to grant further appellate review.

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