Premises Liability: Preparation for a Difficult Trial

A. Overview of the Law.

In Massachusetts, the landmark case describing the rule of premises liability is Mouncey v. Ellard, 363 Mass. 693 (1973):
A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all of the circumstances, including (1) the likelihood of injury to others, (2) the seriousness of the injury, and (3) the burden of avoiding risk.

363 Mass. at 708, quoting Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97, 100 (D.C. Cir., 1972). What is reasonable is generally a question of fact for the jury.

Mouncey abandoned the distinction between licensees and invitees and held that an owner or occupier of land owes a common duty of reasonable care to all lawful visitors. Mouncey v. Ellard, 363 Mass. at 708.

Furthermore, in Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d (1973), the court recognized that leases are essentially contractual in nature and implied a continuing warranty of habitability in all residential leases. The Hemingway Rule allows the tenant to sue the landlord for defects in areas not under the landlord’s control, overruling the doctrine of caveat emptor.

In Berman and Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d (1979), the court held that the warranty of habitability requires at the very least that the landlord comply with the minimum requirements prescribed by the state building and sanitary codes.

However, the warranty of habitability does not impose liability on the landlord for every personal injury that may have resulted from a condition that may have endangered or materially impaired the health or safety and well-being of the occupant. Rather, the condition must be one which relates to habitability. See, Lynch, v. James, 44 Mass. App. Ct. 448, 692 N.E.2d 81 (1998)(holding that landlord’s failure to install window stops or guards did not violate warranty of habitability), reasoning that the failure to provide window guards was neither mandated by state building and sanitary codes, nor was that aspect of the physical facility “vital to the use of the leased premises” 692 N.E. 2d at 82). See, also, Doe v. New Bedford Housing Authority, 417 Mass. 273, 630 N.E.2d 248 (1994)(security guards and other police services “in no way relate to the maintenance or repair of the physical facilities vital to the use of the premises”).

The duty of reasonable care announced in Mouncey, extends to both landlords of residential and commercial property. The warranty of habitability, however, has not been extended to commercial leases. See, Camerlin v. Marshall, 411 Mass. 394, 582 N.E. 2d 539 (1991). In Camerlin, the court held that unlike residential landlords, the commercial landlord owed a duty of reasonable care only for unsafe conditions on premises under his control. The court reasoned as follows:

As a tenant not unsophisticated in such matters [the tenant] assumed responsibility for maintaining the premises, plowing the parking lot and making or paying for minor repairs. In sum, this case does not involve the kind of inexperienced, financially constrained, short term tenancy to which the Young ruling was addressed.

Camerlin v. Marshall, 411 Mass. at 396.

Similarly, in Sheehan v. E.I. Johnson, Inc., 38 Mass.App.Ct. 975 (1995), the Appeals Court stated:

In the context of a lease for commercial purposes, the landlord has a duty to keep the premises in safe condition, with attendant liability if he does not, only if (1) he has undertaken so to do under the terms of the lease or (2) the location of the defect that caused injury was in a common or other area appurtenant to the leased premises over which the [landlord] had some control …. If a tenant … occupies the entire premises – i.e. there are no areas used in common with other tenants – then the tenant is responsible for keeping the premises safe, absent a contractual undertaking to the contrary by the landlord.

(citations omitted)

In Whittaker v. Saraceno, 418 Mass. 196, 635 N.E.2d 1185 (1994), the court refused to hold a commercial landlord liable for a criminal attack that occurred in its underground parking garage, concluding that there was no evidence of previous crimes outside the office building, the area was a low crime area, and therefore the attack was not foreseeable. However, the court acknowledged that commercial landlords do have a duty to guard against foreseeable criminal acts of third parties. The Whittaker court, however, noted that residential landlords normally owe a higher duty of care than commercial landlords to protect against foreseeable criminal acts of parties, because commercial landlords, unlike residential landlords and their tenants, or a college and its students, or common carriers and their passengers, or a hotel and its guests, do not have a “special relationship.”

Although the person’s status as invitee or licensee is not determinative, it is, however, a factor in determining liability. Generally the following factors are looked at:

1. The circumstances under which the person entered the premises (for what purpose);

2. The foreseeability or possibility of harm;

3. Whether there was a duty to inspect, repair or warn;

4. The reasonableness of the inspection or repair or warning; and,

5. Opportunity and ease of repair or correction.

In order for liability to arise, it is only the risk which results in harm that must be foreseen, not the precise manner of the accident or extent of the harm. See, Moose v. Mass. Institute of Technology, 43 Mass.App.Ct. 420, 683 N.E.2d 706 (1997)(holding that defendant MIT and its coaches can be held liable when pole vaulter fell off back edge of landing pit and hit his head, holding that the risk of this type of accident was foreseeable).

Whether the person is a trespasser is still important in defining the landowner’s duty. A trespasser is a person who intentionally enters the land of another without license, invitation or any other right. Even today, the only duty owed to a trespasser is to avoid willful, wanton and reckless behavior. See Aiken v. Holyoke St. Ry., 184 Mass. 269, 271 (1903).

Under certain circumstances, however, a landowner may owe a higher duty of care even to a trespasser. The first exception to the trespasser rule is the “helpless peril” doctrine. This doctrine provides that if the owner becomes aware of a trespasser (“discovered trespasser”) who is in a helpless situation or in grave danger, the degree of care increases to reasonable care in the circumstances. Pridgen v. Boston Housing Authority, 364 Mass. 696 (1974).

Second, is the child trespasser. If the trespasser is a child whose presence is foreseeable, who does not appreciate the danger and if the burden of taking precautions is less than the risk involved, reasonable care must be exercised towards that child. Soule v. Massachusetts Electric Company, 378 Mass. 177 (1979). This duty is also now recognized by statute, Mass. G.L.c. 231, 85Q. See discussion infra, under Attractive Nuisance Doctrine.

B. Snow and Ice Cases.

An owner of property has no duty to clear his or her property from any “natural” accumulations of snow and ice. See Sullivan v. Brookline, 416 Mass. 825 (1994); Barry v. Beverly Enterprises – Massachusetts, Inc., 418 Mass. 590 (1994). If the ice or snow has naturally accumulated, there is no breach of duty if the owner fails to remove such accumulation. In order for liability to attach, some form of human intervention must have occurred with respect to the natural condition. See Phillips v. Aptucxet Post No. 5988 VFW Building Association, 7 Mass. App. Ct. 928, 929 (1979).

Furthermore, even if the landowner initiates action to remove naturally accumulated snow or ice, he or she is not responsible for any existing ice underneath. See Sullivan, supra at 828. The Sullivan court reasoned that the act of shovelling snow from the ramp on the landowner’s property did not alter the condition nor did it create the underlying ice on the ramp.

What is a “natural accumulation” is not always completely clear. Liability may exist where some act or failure to act has changed the conditions of naturally accumulated snow and ice, and the elements alone or in connection with the land become a hazard for lawful visitors. See Aylward v. McCloskey, 412 Mass. 77 at 81 n.3, 587 N.E.2d 228 (1992).

Obviously, if the accumulation of the ice and snow is not “natural” and the landlord fails to remove it, there can be liability. See Phipps v. Aptucxet Post 5988 VFW Building Association, 7 Mass.App.Ct. 928, 389 N.E. 2d 1042 (1979)(ruts created by tire tracks and footprints frozen into ice in a parking lot); Delano v. Garretson – Ellis Lumber, 361 Mass. 500, 281 N.E.2d 282 (1972)(failing to clear snow and ice from an area which was covered with rutted muddy ice and then covered with snow for a period of several days). The defendant, of course, must have notice of the condition or in the exercise of reasonable care should have known of the condition, and had a reasonable opportunity to discover and remedy the hazardous condition. Barry, supra.

In any suit for recovery based on snow and ice, the plaintiff must comply with the strict notice requirements in the statutes. G.L.c. 84, 18, requires notice of such an accident to be given to the defendant within 30 days. The failure to give such notice is a defense only if the defendant can show prejudice. See also G.L.c. 84, 19-20, as to notice for counties, cities or towns, and G.L.c. 84, 21, with respect to notice against private landowners for slip and fall due to snow and ice.

C. Attractive Nuisance Doctrine.

The attractive nuisance doctrine is simply that a landowner whose property, be it land or an attachment, presents danger to children has the responsibility to take measures to prevent injuries to children if he knows or should know that they play there. This duty is now embodied in Mass.G.L.c. 231, 85Q. Simply put, a landowner has a high degree of care to a trespassing child if the property is attractive to children. See Soule v. Massachusetts Electric Company, 378 Mass. 177 (1979).

Since the enactment of G.L.c. 231, 85Q, in 1977, the Supreme Judicial Court has recognized that even at common law, there is a duty of reasonable care by a landowner or occupier to prevent harm to foreseeable child trespassers, and that the notion that the landowner had no such duty was “an outmoded relic of an error when the law, as a matter of course, considered the rights of property owners superior to the safety of trespassing children”. Soule v. Massachusetts Electric Company, 378 Mass. 177, 181-182, 390 N.E.2d 716 (1979). In Soule, the court held that the common law rule is indistinguishable in its elements from M.G.L.c. 231, 85Q or from the Restatement (second) of Torts, 339 (1965). The Restatement, 339 states:

A possessor of land is subject to liability for physical harm to children trespassing thereon, caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass in, (b) the condition is one which the possessor 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, and (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, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight, as compared to the risk to children involved and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

To establish liability, each of the elements of Mass.G.L.c. 231, 85Q, must be satisfied. The statute requires that the landowner knew or should have known that children were likely to trespass in the area. In Soule v. Massachusetts Electric Company, 378 Mass. 177, 390 N.E.2d (1979), the court found that a utility company which owned town land which was open and frequently used by townspeople and children for recreational and hunting purposes, should have foreseen that children would trespass in the area. The court distinguished the child “trespasser” from the “classical poacher or outlaw who invades, perhaps even by breaking a fence or climbing a wall, the private land of another”. However, see, Gaines v. General Motors Corp., 789 F.Supp. 38 (D. Mass. 1991) finding that there was no duty of a landowner to anticipate that a sixteen and a half year old boy would steal a vehicle and cause a crash during a police chase.

The plaintiff must also establish that the landowner knew or should have known that the area where the injury took place contained an unreasonable risk of causing death or serious bodily injury to the child. In Phachansiri v. Lowell, 35 Mass.App.Ct. 576, 623 N.E.2d 1124 (1993), the court found that a municipal pool did not involve a condition that involved an unreasonable risk of death or serious injury to children, reasoning that the danger in that case was one that could be reasonably expected to be fully understood and appreciated by any child of an age to be allowed at large or on his own.

As illustrated by Phachansiri, the “child” must not be so old that he fully appreciates the risk. “The status of child for purposes of the rule will vary with the nature of the hazard [and] it may range as high as 16 or 17 years of age.” Puskey v. Western Massachusetts Electric Co., 21 Mass.App.Ct. 972, 973-974, 489 N.E.2d 1025 (1986). Depending on the nature of the hazard, even an older teenager could be covered by the statute. This will be a question of fact. Gaines v. General Motors Corp., 789 F.Supp. 38 (D.Mass. 1991). Children are recognized to be “predictably irresponsible”, and therefore an adult may have a duty to protect a child, even where the child has some knowledge of the danger. See Tryon v. City of Lowell, 29 Mass.App. Ct. 720, 565 N.E.2d 456 (1991); Scott v. Thomas, 5 Mass.App.Ct. 372, 363 N.E.2d 295 (1977). Even though the danger may be obvious because of the child’s age, he or she may be too young to appreciate the danger, and therefore the landowner must exercise reasonable care for the child’s safety. See Kalinowski v. Smith, 6 Mass.App.Ct. 769, 383 N.E.2d 550 (1978), reversing a judgment entered on a directed verdict for a defendant where a four year old child was struck by a commuter train.

A child may, however, be comparatively negligent so as to bar or reduce recovery under G.L.c. 231, 85Q. See, e.g., Mathis v. Massachusetts Electric Co., 409 Mass. 256, 565 N.E.2d 1180 (1991)(finding a 16 year old comparatively negligent in grabbing an electrical wire after climbing to the top of a utility pole). The question is whether or not the child acted without the degree of care expected from a child of similar age, intelligence and experience.

G.L.c. 231, 85Q(d) requires that the utility of the condition and burden to eliminate the danger be slight, as compared to the risk posed to the child trespasser. The statute requires a “balancing of the hardship to the landowner or occupier in requiring him to provide protection on the one side, against the magnitude of the risk on the other”. Soule v. Massachusetts Electric Company, 378 Mass. 177, 183, 390 N.E.2d 716 (1979). See, See, e.g., Puskey v. Western Mass. Electric Co., 21 Mass. App.Ct. 972, 489 N.E.2d 1025 (1986), where the court found that erecting a barrier to prohibit climbing remote electric towers would “unreasonably encumber repairs and that the signs and education campaign … had diminished the risk”.

Finally, the plaintiff must show that the landowner failed to exercise reasonable care to eliminate the danger or to otherwise protect the child. See Soule v. Massachusetts Electric Company, 378 Mass. 177 (1979).

D. Liability for Acts of Third Parties.

Generally, there is no duty to control the conduct of another. Therefore, as a general proposition, there is no duty to protect others from criminal or wrongful activities of third persons and the owner or possessor of land has the right to assume that others will obey the criminal law. See Restatement (second) of Torts 314. See McIntyre v. Roberts, 149 Mass. 450 (1889).
a duty to take reasonable precautions to protect persons lawfully in the common areas from reasonably foreseeable risks, including the foreseeable risk of criminal activity of third parties. While a landlord, commercial or residential, is not the guarantor of safety of persons in a building’s common area, the law imposes on a landlord a duty to take reasonable precautions to protect persons lawfully in the common areas against reasonably foreseeable risks, and “where there have been repeated acts in a particular area, which demonstrate that such acts are likely to occur in the future, the landlord need not know of the identity and background of the attacker in order to be liable”. Foley v. Boston Housing Authority, 407 Mass. 640, 645 (1990).

The issue of foreseeability is critical. It is necessary to show that the premises owner or person in control knew or should have known that crimes were likely to occur on their premises, and therefore had a duty to take reasonable precautions to prevent these occurrences and to protect their tenant or customer from injury. What precautions had to have been taken by the landlord or manager will depend on the facts of the case.

In Whittaker v. Saraceno, 418 Mass. 196, 635 N.E.2d 1185 (1994), and Fund v. Lenox Hotel of Boston, 418 Mass. 191, 635 N.E.2d 1189 (1994), the court recognized that a commercial landlord owes a duty to protect persons lawfully on its property from foreseeable criminal attack.

In Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331 (1983), the Supreme Judicial Court recognized a college’s duty to protect students against criminal acts of third parties. The court found that, given the nature of the college situation “existing social values and customs” were consistent with a duty of reasonable care by the college to protect resident students from foreseeable harm.
While the court has recognized that owners of commercial and residential property, common carriers, hotels, and schools, owe a duty to protect individuals from foreseeable criminal attacks, the court has been hesitant to impose such a duty upon mere social hosts. See Husband v. Dubois, 26 Mass.App. Ct. 667, 531 N.E.2d 600 (1988); Apple v. Tracey, 34 Mass.App.Ct. 560, 613 N.E.2d 928 (1993). Husband involved a minor who was sexually assaulted by a known sex offender who had been allowed to visit a neighbor’s home. In Husband, the Appeals Court stated:

Social hosts ordinarily would not be expected to anticipate that a guest in their home or apartment might be violently attacked with a deadly weapon by another guest. Further, neither ‘the nature of the situation’ nor ‘existing values and customs’, see, Mullins v. Pine Manor College, 389 Mass. at 51, dictate that social hosts have a duty to protect their visitors or to make the property safe from such criminal acts. Hosts normally do not voluntarily assume such obligations, and visitors ordinarily do not rely or depend upon their hosts for such protections. In the absence of a situation showing that a danger should have been anticipated, or customs which clearly impose a duty of protection or a preferred form of response, hosts should not be charged, at the risk of liability, to furnish security at social gatherings or to call police every time a guest becomes unruly.

Husband v. Dubois, 26 Mass. App. Ct. at 670.

The circumstances under which a crime will be determined to be reasonably foreseeable, will depend upon the “totality of the circumstances” and on the individual circumstances of each case. See Flood v. Southland Corp., 416 Mass. 62 (1993)(reaffirming the totality of circumstances rule in determining whether attack was reasonably foreseeable); Fund v. Hotel Lenox of Boston, 418 Mass. 191 (1994); Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331 (1983).

Massachusetts, unlike other states, does not absolutely require that the plaintiff demonstrate the existence of prior crimes in the area. Instead, the jury may look to the totality of the circumstances in deciding whether an attack was foreseeable. Mullins v. Pine Manor College, 389 Mass. 47 (1983).

rior criminal acts are simply one factor among others to establish the foreseeability of the act of the third party. However, since Mullins, the Massachusetts Appeals Court has stated that under some circumstances, proof of prior crimes may be necessary. In Magaw v. MBTA, 21 Mass. App. Ct. 129, 485 N.E.2d 695 (1985), a woman was robbed in an unlit MBTA tunnel. The court upheld the jury’s verdict holding the MBTA liable and the attack foreseeable, but in so holding, recognized that there are some cases where the number or degree of prior incidents may be so inconsequential that a judge may rule as a matter of law that they are insufficient to place the defendant on notice of inadequate security.

However, in Sharp v. Peter Pan Bus Lines, 401 Mass. 788, 519 N.E.2d 1341 (1988), a sharply divided court held that the stabbing death of the plaintiff while she waited inside the bus station, was reasonably foreseeable, and that the defendant was liable for failure to provide a uniformed security guard to prevent such an assault, or at least to deter the would-be assailant. The court relied heavily on the fact that the bus station was in an area of high criminal activity, and concluded that the jury could find that even this sudden, unprovoked attack could have been prevented by the presence of uniform security guards. There was a strong dissent, arguing that the stabbing was not reasonably foreseeable. While there was evidence of crimes, “winos” and derelicts, the dissent’s position was that there was insufficient evidence of prior, similar criminal attacks to make homicide foreseeable. There was no evidence of any previous murders at the station. The dissent argued that Mullins should be limited to the particular circumstances of that case. See also Foley v. Boston Housing Authority, 407 Mass. 640 (1990)(finding that an attack by a fellow employee was not foreseeable).

In Flood v. Southland Corp., 416 Mass. 62 616 N.E.2d 1068 (1993), the court upheld the verdict in favor of a young customer who was stabbed outside the convenience store. The court found that the store clerk should have foreseen that someone could be stabbed where a group of boys entered the store and appeared “pretty high”, and where one of the boys was carrying a knife. In Flood, there was also a strong dissent. The dissent reasoned that the stabbing broke the chain of causation and that even if the defendant was negligent, the store clerk could not have prevented the stabbing, and further there was no evidence that the stabbing was foreseeable.

As to claims against schools, state hospitals or other governmental entities for negligent security, such claims will be governed by M.G.L.c. 258, 1 et seq as amended in 1993. There are many sections of that statute which the governmental entity will argue protect it from liability for the criminal acts of third parties, particularly the section providing immunity for “discretionary” functions and the section providing immunity from claims based on failure to act to prevent or diminish harmful consequences of a condition or situation not originally caused by the public employer or any person acting on the employer’s behalf. Where the school, however, fails to adopt or implement any security measures, it can be held liable to a student attacked at school. See, Brum v. Town of Dartmouth, 44 Mass.App.Ct. 318, 690 N.E.2d 844 (1998).