The Mass version of Rule 407 specifically provides that evidence of subsequent remedial measures may be introduced to prove “ownership, control or the feasibility of precautionary measures.” So, I suppose the evidence of the grinding should be admitted for that limited purpose. The concurrence points this out in a footnote.

Nonetheless, the majority seems to have based its opinion on the fact that the city had a statutory duty. More importantly, the court recognised that the question of control involves something more than who fixed the defect:

Under some circumstances, “a duty of care may arise from the right to control land, even where the person held to such a duty does not own the land in question." (citations omitted) . . . That general rule does not apply here for two reasons. First, the record contains no evidence concerning the existence of any legal right of control possessed by the defendants over the sidewalk, but merely an unopposed remedial action. Second, the city, which is the owner of the sidewalk here, is a public entity statutorily tasked with control of sidewalk maintenance and repair.

I think the court understands the control cases to involve situations where the defendant had or was given legal control. (One example being the case of a road works company being given control over a portion of a highway for the purpose of repairing it.) I think the primary factor governing the court’s decision was, therefore, that there was no evidence whatsoever that the defendant here had been given any legal control over the pavement. Rather, it seems to me that what we have is a Good Samaritan who comes forward to fix a problem before someone else gets hurt. This fact, combined with the fact that the city had a statutory duty to fix the pavement was a good basis for denying liability.

Personally, I find the concurrence a bit troubling as further evidence of modern courts’ continuing efforts to find a deep pocket to make good a plaintiff’s loss. I know I must sound like a dinosaur here but the concurrence seems to be another example of modern judges attempting to manipulate the theory of duty of care to produce a favourable result for the plaintiff.

Thus, the concurrence complains that without liability being imposed on the defendant the plaintiff be “left without an effective remedy.” Well, that is clearly not the case. The plaintiff could here sue the actual owner, the one with the common law and affirmative statutory duty to maintain the sidewalk, namely the City of Boston. Surely a deep pocket, but one that was never even named as a defendant in the action! The reason for this, apparently, is that there is a statutory cap on the city’s liability that made the business owner a better target than the city. Thus, we have a judge casting about to find someone to pay, but only if we can dispose of traditional duty of care in cases such as this.

The concurrence would use “public policy” to change what it admits are long-standing common law and statutory duties to produce a plaintiff-friendly result. It does so on the basis as it says that

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.

Ummm, one answer to that might be .... “because I don’t own it.” In the concurring judge’s view, adjacent landowners would have a duty to maintain someone else’s land simply because the public expects it. But to make matters more complicated, the judge only wants to carve out an exception for commercial abbuters. One wonders whether such a rule would not produce an interesting patchwork of liability as he proceeds down the road, with one landowner being responsible for the pavement because he runs a store, while the guy next door does not because his property is used for residential purposes. Arguably, a rule that makes the city responsible for the condition of public sidewalks is better because it provides clarity and consistency. And that, it seems, is what the Commonwealth was attempting in passing statutes to make municipalities responsible for the pavement.

Finally, using “public expectations” seems to me to be an odd way of developing the law. The public thinks and expects lot of things, but one wonders whether liability rules should be so dependent on expectations in this way. The public at large might, in fact, expect a commercial abutter to maintain the walk (as the concurrence suggests), but it has to be remembered that the public has already expressed itself in legislation to the contrary.



-------------------------------
Matthew P Harrington
Professeur
Faculté de droit
Université de Montréal
514.343.6105
commonlaw.umontreal.ca
------------------------------

From: Kleefeld, John<mailto:john.kleefeld@usask.ca>
Sent: November 18, 2016 11:24 AM
To: Richard Peltz-Steele<mailto:rpeltzsteele@umassd.edu>; obligations<mailto:obligations@uwo.ca>
Subject: Re: Mass. App. on landowner duty for adjacent sidewalk

Hello Richard:

At the federal level in the US, Rule 407 of the Rules of Evidence<https://www.law.cornell.edu/rules/fre/rule_407> provides as follows:

Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

* negligence;
* culpable conduct;
* a defect in a product or its design; or
* a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

The link that I’ve provided has a good commentary both on the policy rationales for the rule and the limitations or exceptions to it. The commentary mentions a case in which the evidence was admitted, not to prove negligence, but to show that the portion of a road was under defendant's control. Perhaps that is similar to the scenario you’re citing. I haven’t looked that the Massachusetts version of the rule, but my understanding is that every state has a similar evidentiary rule—though differences of interpretation are likely to abound.

John Kleefeld
Associate Professor, College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon SK S7N 5A6

tel: (+1) 306.966.1039
email: john.kleefeld@usask.ca
skype: johnkleefeld
twitter: @johnkleefeld
web: http://law.usask.ca/find-people/faculty/kleefeld-john.php

Read my most recent article, co-authored with former student Kate Rattray, on editing Wikipedia for law school credit: http://ssrn.com/abstract=2729241.

Also, just published—“Concurrent Fault at 90,” my book chapter in Quill & Friel’s Damages and Compensation Culture: http://www.bloomsbury.com/au/damages-and-compensation-culture-9781849467971.

And a recent blog post on Slaw: http://www.slaw.ca/2016/11/09/standard-of-review-the-great-passion-of-canadian-law.


From: Richard Peltz-Steele <rpeltzsteele@umassd.edu>
Date: Friday, November 18, 2016 at 12:07 PM
To: obligations <obligations@uwo.ca>
Subject: Mass. App. on landowner duty for adjacent sidewalk

ODGers and aficionados of common law duty doctrine:

A Massachusetts Appeals Court decision published today, Halbach v. Normandy Real Estate Partners (PDF<http://www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/15p1500.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?

rick

Richard J. Peltz-Steele
[cid:image001.png@01D24196.93C00320] Professor, UMass Law School<http://www.umassd.edu/law/faculty/richardpeltz-steele/>
[cid:image002.png@01D24196.93C00320] http://ssrn.com/author=625107
[cid:image003.jpg@01D24196.93C00320]The Savory Tort <http://www.thesavorytort.com/> [cid:image004.jpg@01D24196.93C00320] @RJPeltzSteele<https://twitter.com/rjpeltzsteele> [cid:image005.png@01D24196.93C00320] +1 508-985-1102