Premises liability, or property negligence, cases are legal claims for monetary damages by plaintiffs injured or killed as a result of some hazardous defect on real property.  In Massachusetts, those who own or control real property have a duty to maintain it in a reasonably safe condition for lawful visitors.  As in all negligence cases, property negligence cases require proof that the defendant (1) owed a duty of reasonable care, (2) breached that duty, and thereby (3) caused (4) injury.

Most of the general negligence principles apply to premises liability cases, in addition to some of the unique aspects of this area of tort law discussed below.

A.        Parties to Premises Liability.

There are two types of plaintiffs in premises liability cases: trespassers and legal entrants.  A trespasser is one who enters upon the real property of another without legal right or without permission, either actual or implied.  Everyone else is deemed a legal entrant.  The difference is important because Massachusetts affords much less legal protection for personal injury to a trespasser than to a non-trespasser.

There are many types of defendants that own or control real property in Massachusetts including title holders, lessors, lessees, tenants, condominium trusts and other forms of realty trusts.

B.        Properties Subject to Liability.

There are generally four types of property involved in premises liability claims:

1.         Residential property.

This includes apartments, condominiums, co-operatives and single-family homes.

2.         Commercial property.

This includes retail stores, shopping malls, hotels, hospitals, nursing homes, private school and university campuses, gas stations, theaters, bars, nightclubs, marinas, restaurants, airports, transportation terminals, parking garages and offices.

3.         Industrial property.

This includes factories, warehouses, construction sites, public utility plants and water treatment facilities.

4.         Public property.

This includes property owned by the state, cities or towns such as parks, sidewalks, public school and university campuses, beaches, government office buildings, highways, toll roads, streets and boat docks.  This can also include property owned by quasi-governmental entities like the Massachusetts Bay Transportation Authority, the Steamship Authority, the Boston Redevelopment Authority or the Massachusetts Turnpike Authority.

C.        Property Insurance. 

Virtually every square foot of Massachusetts is insurable and, in practice, most of it is.  Liability insurance will apply negligently caused injuries that occur on the insured premises.  Standard liability insurance policies provide coverage for losses usually between $100,000 and $1 million depending on the nature, use and value of the property.  In addition, standard policies provide for an insurance defense attorney to be hired by and paid by the insurance company to represent the owner or occupier of the land.  So, premises liability claims are almost always satisfied by insurance proceeds rather than from the assets of the individual defendant.

D.        The Landowner’s Legal Duty of Care.

The duty of care owed by a landowner or occupier is different for legal entrants than it is for trespassers.  Legal entrants are owed a duty of reasonable care, that is a duty to refrain from negligence.  Trespassers are merely owed a lesser duty to refrain from reckless, willful or wanton misconduct (unless it is a child trespasser).

1.         Legal entrants.

The vast majority of property negligence claims are brought by legal entrants upon the subject property.  As to such entrants, an owner or occupier of land has a legal duty to take reasonable steps to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the risk and the burden of avoiding the risk.  This “reasonableness” standard is intentionally broad so that it can be applied to the countless sets of circumstances that can arise in our complex modern world.

The existence of a duty of reasonable care does not alone constitute negligence.  There must be a duty and a breach of that duty.  The landowner is not an absolute insurer of the property. There is no obligation to maintain premises in conditions of absolute safety for unforeseeable uses or those for which it was not reasonably intended.  A landowner or occupier is expected to provide for the safety of lawful visitors in light of events that are reasonably foreseeable.  To prevail on a premises liability claim, the plaintiff must prove by a preponderance of evidence that the defendant violated its duty of reasonable care duty based on community standards as to what constitutes acceptable behavior.

Here is a typical illustration.  On his first visit to the local hardware store, a customer inquires about some lumber and is directed down to the basement.  The stairs are old, narrow, poorly lit and lined with plumbing stock.  As he is descending, the customer trips on part of an elbow joint that is the same color as the gray cement step.  He falls head over heels, fractures his cervical spine and remains permanently paralyzed from the chest down.  The store owner could be found liable because the company owed the customer a duty to keep the stairs in a reasonably safe condition for passage and a jury would be warranted in finding that the company breached that duty by placing stock on the steps that would not readily discernable to a reasonable person.  Of course, a jury could always also find that the customer himself was partially at fault and also assign him some comparative negligence though that would seem unlikely given these facts.

2.         Trespassers.

Trespassers are treated differently than legal entrants under the law of negligence.  Trespassers are not owed any duty of reasonable care; that is, they need not be treated with reasonable care.  Thus, trespassers cannot prevail on a claim for negligence in a premises liability case.  Trespassers can only bring claims if they were injured by some more culpable act like recklessness or some willful and wanton misconduct of the defendant.

Recklessness is the taking of a unreasonable risk when one knows that there is a substantial likelihood that injury will result.  Willfulness and wantonness involve even more intentionally harmful risk-taking by the property owner.  In Massachusetts, even trespassers can be protected from highly dangerous conduct like the setting of a spring action gun trap or other type of harmful device like a bear trap that is intentionally placed to harm criminal trespassers.  However, trespassers face a tough road with juries especially when the trespass appears to have been made with criminal intent rather than part of an innocent frolic.

For an example of a viable premises claim by a trespasser, consider the suburban pool hoppers who climb a small stone wall to enter a neighbor’s yard every summer night, raise a racket and then run off into the night.  One day the fed up homeowner affixes large pointed glass shards sticking straight up all along the stone wall.  He knows but does not care that it will be difficult for the pool hoppers to discern this hazard in a momentary flash in the dark of night.  This property owner was probably reckless (and maybe even willful and wanton) and could be held legally responsible if a trespassing pool hopper was unfortunate to catch a wrist on a shard and bleed to death or suffer some severe nerve injury.

The one exception is for the child trespasser whom the Legislature sought to protect by passage of a child trespasser statute.  Under the statute, the normal standard of reasonable care for legal entrants applies to foreseeable child trespassers.  The foreseeability factor is set forth in G.L. c. 231, § 85Q, which states as follows:

“Any person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon if (a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass, (b) the condition is one of which the land owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

E.        Commercial or Business Property Accidents.

The majority of litigated premises liability cases deal with plaintiffs injured in one way or another while lawfully visiting some business operated by the defendant.

The business owner’s duty is to maintain the premises in a reasonably safe condition and to warn legal entrants of any unreasonable dangers of which the owner is aware or should reasonably have been aware.  The plaintiff has the burden of establishing that there was a defect on the premises and that the defect existed on the premises for such a period of time that the defendant, in the exercise of reasonable care, should have known of it, had an opportunity to remedy it and failed to do so.  This usually happens in one of three ways.

1.         The defendant or its employees either created the dangerous condition or had actual knowledge of it;

2.         The defendant or its employees were positioned so that they should have seen and remedied the dangerous condition; 


3.         The plaintiff fell on a foreign substance that by its condition creates an inference it was present for such a period of time              that the defendant or its employees should have seen it.

The length of time that passes between the creation of the hazard and the time of injury is always an important factor in weighing the reasonableness of the defendant’s conduct. The first two situations can usually be proved by direct evidence, like a surveillance video or eyewitness testimony about the condition and length of time it existed.  The third situation, where there are no direct witnesses or evidence, is more problematic.  In that situation, since no one knows who created the hazard and no one saw the hazard prior to the accident, the plaintiff must prove facts sufficient to create a “reasonable inference” that the substance was on the floor for such a time that the defendant should have seen it.  This circumstantial type of proof can be difficult to come by.

The length of time allowed for reasonable opportunity to discover a transient property defect is governed by the circumstances of each case and to a large extent depends on the opportunity for discovery available to the defendant’s employees by reason of their number, and, in general, the likelihood that they would become aware of the condition in the normal performance of their duties.  The issue is whether there is any evidence from which to infer that a foreign substance had been on the ground long enough so that in the exercise of reasonable care the defendant should have discovered and removed it.  The fact that organic food matter on the floor was rotten or dirty at the time of incident is not enough to prove that it was on the floor for an unreasonable amount of time.  The mere presence of a foreign substance on the floor is not evidence of negligence.

F.         Snow and Ice Accidents.

There used to be a special rule that landowner’s could not be legally responsible for accidents that occur on “natural accumulations” of snow or ice.  That rule was wisely abolished by the Supreme Judicial Court.

G.        Duty Owed to Skiers.

The liability of ski resorts for injuries to skiers and users is sharply limited by the Massachusetts Ski Safety Act.  The statute provides that ski area operators “shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.”

The statute also establishes the obligations of skiers as follows: “[a] skier shall be presumed to know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots, and shall assume the risk of injury or loss caused by such inherent risks.”

Under the statute, according to one court decision, a ski area operator cannot be liable for one skier’s collision with another skier due to icy conditions while getting off of a chair lift.  In another case, the court stated that a ski area operator could not be liable for a skier’s fall on a bare patch on a ski slope.

It would seem, however, that the statute might not apply to injuries caused by the negligent placement of man-made machinery in or adjacent to ski trails, like snow making pipes or machinery.

Of course, the statute does not affect an injured skier’s ability to pursue a claim for negligence against other skiers or snowboarders for their negligent conduct on the mountain.

H.        Public Property.

Like a private property owner, the Commonwealth of Massachusetts and its cities and towns can also be held liable for unreasonable property hazards, but with some important limitations.

First, municipal entities are protected by a statute which limits their liability to $100,000.

Second, municipal entities enjoy special notice protections under which a person injured on public property must make timely written notice to the executive officer of the municipal entity before any legal action can be undertaken in a court of law.

Third, municipal entities are granted a lot more discretionary leeway in how they operate their public lands.  In fact, one major defense in these types of cases is the discretionary function exception under which the public landowner or occupier is immunized from liability for conditions on real property that were part of the defendant’s operational discretion on the use of public funds and resources.  The cases deciding the scope of the discretionary function are some of the most contradictory and confusing that one will ever come across in Massachusetts.  These cases are best handled and researched on a case-by-case basis as they arise.

I.          Defenses.

Defendants can also assert various types of affirmative defenses to liability.

1.         Comparative negligence. 

The most common defense to property defect claims is comparative negligence.  The defendant landowner will attempt to prove that the plaintiff is more at fault for causing his or her own injuries.  If the jury finds that the plaintiff was more than 50% at fault, the defendant prevails.  If the jury finds that the plaintiff was 50% or less at fault, then the award will be diminished in proportion to that percentage.  So, if the jury finds the plaintiff 25% at fault and returns a verdict for $100,000, the verdict will be reduced to $75,000.

To prove comparative negligence, the defendant has the burden to prove by a preponderance of the evidence that the plaintiff was not in the exercise of due care at the time of the alleged accident. The defendant is entitled to rely to a certain extent on the expectation that a person will take reasonable care for his own safety.  There must be that exercise of reasonable care and caution on the part of the plaintiff that the jury would naturally expect from a reasonably prudent person under the same or similar circumstances.

Massachusetts juries tend to view slip-and-fall type cases with skepticism.  The mindset of “better watch where you are going” often prevails over other considerations and jurors can often regard these events as everyday episodes in the living experience and not the proper subject for our judicial system.

2.         “Open and obvious” danger.

If a risk is such that it would be obvious to persons of average intelligence, then an owner or person in control of the property owes a lawful visitor no duty to warn of such risks.  This defense can be thought of as a way for a landowner to negate its duty of reasonable care.  This rule has been held to excuse property owners from liability for failing to warn of appreciably hazardous conditions.

The rule essentially provides that no duty is owed to anyone with respect to dangers that are open and obvious to a person of average intelligence with ordinary perception and judgment who is exercising reasonable care for his or her own safety. The rule requires an objective assessment of the nature of the hazard itself, not the plaintiff’s blameworthiness in encountering the hazard.  The court is supposed to then determine whether as a matter of law a legal duty to warn exists.  A problem arises when defendants erroneously try to argue comparative negligence in this context.  Some courts confuse the concepts and end up ruling in the defendant’s favor on the issue without letting a jury decide it. The result is an inconsistent application of the rule by the courts.  For good or bad, here are some examples of open of obvious dangers that our courts have found require no duty to warn:

(a)        the danger of getting hit by another car while at a filling station

(b)       the danger of an open stairway in an unlit hallway at 1:00 a.m.

(c)       the danger of ice forming at a car wash in zero-degree weather

(d)       the danger of carrying oversized planks in an elevator car

(e)       the danger of attempting a back flip on a hardwood floor

(f)        the danger of diving headfirst into the shallow end of a swimming pool

Open and obvious court decisions are also riddled with inconsistencies and defy general categorization.  They are best handled and researched on a case-by-case basis.

3.         Statute of Limitation.

A plaintiff must file a complaint for negligence, including one for premises liability, within three years from the date that he knew or should have known that he was injured as a result of some wrongful conduct.  The plaintiff’s failure to timely file the complaint is a complete defense in a negligence action, meaning the case will be dismissed.

In most property injury cases, the limitations period will begin to accrue on the date of the incident because the causal connection will be obvious to a reasonable person.  This would be the case in a staircase accident where the victim should be able to appreciate right away that he was injured due to property defect like an uneven riser, loose carpeting or a raised nail for example.  In rare cases, the “discovery rule” can toll the limitations period when the manifestation of injury is somehow delayed or where it is initially unclear what caused the injury.

4.         Recreational use statute.

Under G.L. c. 21, § 17C, an owner or lessee in control of land who permits the public to use such land for recreational purposes without charging a fee cannot be held liable to a lawful visitor who suffers injury while recreating on the land absent proof of willful, wanton or reckless conduct.  In effect, property owners owe the same duty of care to recreators as they do to trespassers. This statute covers indoor and outdoor parks, playgrounds and ball fields.  A request by the property owner for voluntary contributions to access the grounds does not constitute charging a fee.  

5.         Woodgatherers statute.

Under this quaint old statute, a property owner or lessee in control of land cannot be liable for negligence where he permits the public to use his land to gather firewood without charging a fee.  Under the rule, the owner or lessee cannot be held liable to a lawful gatherer unless that defendant acted with some kind of willful, wanton or reckless conduct.  This would probably include the setting of traps or other hidden types of dangers without alerting any visitors of the hazard.

6.         Defect on leased portion of commercial property.

It is well-settled that a residential landlord can be held liable for a defect of which he or she had notice and a reasonable opportunity to repair, even though the defect is on that portion of the premises leased to a tenant.  But a commercial landlord cannot be held liable for a defect on that portion of premises leased to another, even though he or she has notice of the defect and had a reasonable opportunity to repair it.

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