Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)

ODGers and aficionados of common law duty doctrine:

A Massachusetts Appeals Court decision published today, Halbach v. Normandy Real Estate Partners (PDF), offers a straightforward analysis of common law landowner duty (and lack thereof) with respect to passersby on a public sidewalk adjacent to a commercial property.

The plaintiff fell and suffered injury as a result of unevenness on what was not disputed to be a Boston city-owned and -maintained sidewalk.  The defendant spent $800 to grind down the unevenness after the incident.  The court agreed with the plaintiff that exercise of control over property may create landowner duty despite lack of ownership, but found no such control here, and no common law duty over a right-of-way merely because of its adjacency.  Duty would have arisen in the ordinary sense if the property owner affirmatively had created some dangerous condition on the public right of way.  Summary judgment for the defendant was affirmed.

Concurring, Justice Milkey wrote separately to opine that the plaintiff's case was stronger than the majority let on, even if the judge agreed with the conclusion.  Justice Milkey observed that the record contained testimony from an employee of the defendant acknowledging responsibility for the sidewalk as a matter of good business.  The judge worried that injured plaintiffs will be left without remedies against real estate owners who in fact assume responsibility for the injurious conditions.  But he offered no distinguishing principle going forward.

The plaintiff argued that the defendant's remedial action demonstrated control, and therefore responsibility for the dangerous condition.  Judge Milkey acknowledged the defendants' "laudable" repair as "strong evidence."  To my mind, such a conclusion makes problematic policy; I would think the evidence of at least this remedial action should be excluded.  Am I wrong about that?

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