Articles Posted in Premises Liability

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stairsOn April 1, 2007 a Boston University student went with some friends to a bar and restaurant located in the heart of the city.  After spending some time in the establishment, the student walked down the hallway of the restaurant in order to find some quiet space in order to make a phone call.  He stood outside the kitchen and across from, what was later discovered to be, a staircase.  The staircase was not readily discernible due to the presence of hanging vinyl strips shielding its presence.  As the student proceeded with his phone call, he presumably lost his footing and tumbled down the stairs where he was unconscious until an employee of the restaurant found him lying on the floor.  After immediately being rushed to the emergency room, the student died two days later due to a basilar skull fracture and a subdural hematoma.  These injuries were received as a result of the fall.

The parents of the decedent brought a law suit in superior court in Massachusetts against the establishment claiming wrongful death and violations of Massachusetts General Laws Ch. 93A.  Ch. 93A, also referred to as the Consumer Protection statute in Massachusetts, details that:

“ Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Continue reading →

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1334532_48594781According to the National Safety Council (NSC), approximately 8.9 million Americans visit the emergency room every year due to injuries suffered in slip and fall accidents. Though people of any age may suffer injuries when they slip, trip, or fall down, statistics show that Americans aged 65 and older may suffer particularly severe injuries. Specifically, hip fractures are possibly the most prevalent injury suffered by elderly Americans who slip and fall.

The Centers for Disease Control and Prevention (CDC) reports that 258,000 people in the U.S. over the age of 65 were admitted to hospitals for fractured hips in 2010 alone. Falling down was the number one cause for such hip fractures. Most often, the victim would fall to the side and land directly on their hip. Falls took place in a wide variety of locations, including the victim’s home, stores, other public places, nursing homes, or even within the hospitals themselves.

Continue reading →

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sunny-icicles-813790-mAccording to the National Weather Service, the average snow fall in Framingham for the month of February is 9.1”. The snow precipitation that we’ve encountered in the past few days has left approximately 10”-12” in towns throughout the metro west area. This one storm has left accumulations that are more than the average total for the entire month of February. While individuals plow their driveways, shovel their steps, and make areas of travel safe for guests and household members, a hidden danger lurks in areas most individuals are unable to remedy with ease- icicles hanging from rooftops. While many may laugh at the idea of an icicle posing a danger, the length and width of icicles falling from great heights transform these frozen wonders into frozen missiles capable of exacting injury, and in some cases, even death.

In Gosselin v. Colonial Shoping Center, Inc., a Plaintiff was injured while walking to get a cup of coffee from the Defendant’s store. As she approached the entrance she heard a sound of thunder from up above on the roof of the establishment. Before she knew it, she was hit unexpectedly by snow and icicles that fell from the roof. The Plaintiff brought suit against the store owner due her significant injuries that necessitated the intervention of an orthopedic doctor, claiming that the store owner failed to exercise a duty of reasonable care by failing to guard against the falling snow and ice. The lower court judge found in favor of the Defendant store owner. On appeal, the court held that there was no evidence suggesting any breach of the duty of reasonable care on the part of the Defendant. Additionally, the court held that the Plaintiff failed to present any expert testimony suggesting a design defect in either the roof or the awning where the snow fell. Finally, the court held that the Plaintiff presented no evidence that the Defendant was aware of the defect.  Continue reading →

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dark-doorway-1364550-mAn eighty year old woman enters a funeral home to attend the funeral of a friend. As she makes her way to her destination, snow continues to fall as it had been doing for the past hour or two. After making her way up the stairs to the funeral home and through the entryway door, she wipes her feet on the carpet just inside the entrance of the funeral home. After taking one step off the carpet she falls in a 3′ x 4′ area of dirty water on a marble floor and suffers injuries. She brings suit against the owner of the funeral home claiming negligence, and specifically, a breach of a duty of care owed to her and other patrons by failing to recognize the danger of water that had been accumulating on a marble floor. After extensive litigation in the matter, a jury returned a verdict for the injured Plaintiff. However, on appeal, the decision was reversed and the court held that, due to the transitory nature of the premises, and the lack of evidence that the floor became peculiarly slippery when wet, the court could not find the landlord breached his duty to the Plaintiff.

Does the “transitory nature” of premises effect a person from recovering due to a fall of snow, water, or ice at the entranceway of a premises?

The court in Wexler v. Stanetsky Memorial Chapel of Brookline, Inc. (referred to above) held that it does prevent an individual from recovering money from a landlord or shop owner. The court held that the transitory conditions of the premises, and its use in normal wet weather, could not have been prevented. Additionally, “there was no evidence to indicate that the water on the floor was more than the, “results from the tramping of many feet in such a place . . . under the conditions of weather then existing.’”  Continue reading →

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black-and-white-trampoline-733512-mA child sneaks out of his house onto his neighbor’s property late at night. He spots a trampoline on the property and heads in that direction. Without his parents’ consent, or the consent of the owner of the property, he climbs on the trampoline and begins jumping higher and higher. The minor is flying high in the sky. As he prepares his feet to hit the lining of the trampoline in an effort to jump even higher, he mistakenly hits the side of the trampoline which causes a gruesome leg break. After the homeowner hears the screams and contacts the appropriate authorities- the question remains… who is responsible for the injuries sustained by the child? The parents for failing to monitor their child? Or the homeowner for failing to properly fence or otherwise guard the trampoline?

In Massachusetts, a person who enters the land of another without any right or privilege to do so is considered to be a trespasser. Traditionally, an adult trespasser is entitled to no duty of care by the landowner. However, a landowner cannot engage in any willful, wanton, or reckless disregard for the trespasser’s safety. This generally means that a landowner cannot knowingly and intentionally disregard an unreasonable risk where there is a great likelihood that a person could be seriously injured should that person enter the land owner’s property (even without permission). What constitutes an unreasonable risk may vary depending on the circumstances of each particular case. However, when the trespasser is a child, as opposed to an adult, the law is vastly different.

Under Massachusetts General Laws, Ch. 231, § 85Q, any person who maintains an artificial condition upon his or her 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. Continue reading →

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snow-covered-street-685491-mThe start of 2014 has brought an extreme cold wave, known as a Polar Vortex, that has plagued the United States. Individuals from the Midwest to New England have been greatly impacted by this weather pattern. Snow has been falling in record amounts, falling faster than it can be dealt with, and the bitter cold has made it unbearable to be exposed to the outdoors for an extended period of time. This accumulation, coupled with periods of warmth, are a dangerous combination. After the snow melts and creates pools of water on sidewalks and roadways, the menacing mother nature of New England blows in and freezes these water sources. The result creates hazardous conditions for pedestrians who utilize public sidewalks and roadways.

Massachusetts General Law Chapter 84, Section 15, provides the exclusive remedy against a city or town for injuries or damages caused by a defect in or upon a public way. Typically, if one is injured as a result of a defect on a sidewalk or roadway owned or operated by a city or town, there is a limited recovery of $5,000.00. Generally, a person’s right of recovery will be governed by this law if:

  1. he/she sustained “bodily injury or damage in his property . . .”;

  2. “by reason of a defect or a want of repair or a want of sufficient railing . . .”;

  3. while traveling;

  4. “in or upon a [public] way … .”

A “defect” is anything in the state or condition of the way that renders it unsafe or inconvenient for ordinary travel. This is not to say that the road or sidewalk need to be in perfect condition, but rather, reasonably safe. Imperfections in the road or sidewalk are considered to be expected and travelers should be aware of this. A defect may be a pothole, a roadway design, or a broken tree. However, snow or ice is NOT considered to be a defect. Under Chapter 84, section 17, “a municipality shall not be held liable for injuries sustained upon a public way due to snow or ice if, at the time of the accident, the way was otherwise “reasonably safe and convenient for travelers.” Put another way, if a traveler falls due to the snow or ice, he or she cannot typically recover against the municipality. Continue reading →