Massachusetts Courts to Reconsider Sidewalk Liability – Part Two of Two

In my previous post on this subject, I wrote about how recovering damages for injuries suffered due to falls on Massachusetts municipal sidewalks, is legally very difficult.  In theory, if a person in Massachusetts is injured in a slip & fall accident due to snow or ice being on a sidewalk, that person can sue the municipality as the owner of the sidewalk – but only if the snow or ice was accompanied by some other defect that made the sidewalk dangerous (such as a gap in concrete or asphalt, etc.)

Even more so – and worse for persons injured due to falls on these sidewalks, whether the fall was caused by snow, ice, or other structural defects in the sidewalk, liability for any such injuries has always been capped at $5,000 per event.  This is courtesy of a special statute, M.G.L.  c. 84, §15, enacted several years ago.  Attempts to change this law have always been successfully opposed by the organization that represents the 351 city and towns in Massachusetts, the Massachusetts Municipal Association.  Your tax dollars at work, huh?

Some cities and towns here have tried to insulate themselves from this laughably limited liability even further, by passing snow & ice removal ordinances (local laws) that they hoped would shift any remaining potential liability entirely to business or property owners that abut where a sidewalk snow & ice injury occurred.  That didn’t work:  Courts in Massachusetts have ruled that snow and ice removal ordinances cannot create a private right of action. (Gamere vs. 236 Commonwealth Avenue Condominium Association, 19 Mass. App. Ct. 359.) The SJC has affirmed this, ruling that “ordinances which require householders to re­ move snow and ice from sidewalks are for the benefit of the community at large, and not for persons who fall as a result of snow and ice.” The court acknowledged that the policy behind this rule was to keep public ways in a reasonably safe condition for travelers, and this was the responsibility of cities and towns which could not be delegated to others. This ruling applied to businesses as well.

When it comes to businesses that enter into contracts with snow removal services, the “contractual duty” theory has been tried by injured plaintiffs in this area also, but this hasn’t worked so far, either.  Contract law and tort law are separate, and courts here have ruled that a contractual duty to remove snow and ice does not create a duty under tort law.  In this circumstance, an injured plaintiff would have to show that the contract: (1) Specifically intended to benefit the plaintiff and (2) Was also performed in a manner that materially breached the terms and conditions of that contract.  As a Massachusetts slip & fall attorney, I can assure you:  This is no easy legal task.

But a recent Massachusetts Appeals Court ruling may have opened the door to legal change in this important area of law.  Dealing with this question, the Massachusetts Appeals Court recently held that “the world principally looks to private property owners to make sure that the sidewalks bordering their property are safe.”  An Appeals Court judge has opened the door for the Supreme Judicial Court to revisit common-law liability rules that apply when someone is injured due to a sidewalk defect.  A ruling is expected in the near future.

In the meantime, watch your step when walking on icy and slippery sidewalks.  Because if you do slip and fall and are seriously injured, you’re going to have a very hard time recovering more than the current maximum liability of $5,000 from a city or town, because it’s pretty unlikely that any plaintiffs’ injury law firm will accept your case.  This is so because the amount of professional time and expense it would take to wrest even that small amount from the average municipality, makes litigating a case like this simply not feasible.  And for the reasons explained above, at present it’s extremely difficult to hold a business that fronts or abuts a sidewalk liable for these types of injuries.

This is patently unjust and unfair to persons using the sidewalks in all 351 cities and towns throughout Massachusetts.  If you want things in this area of law to change, you can do two things:  1)  Write your state legislator and urge them to increase the municipal liability cap on sidewalk injuries to something far more reasonable in today’s world – perhaps $45,000 or $50,000; or 2) Cross your fingers as the SJC reconsiders this subject.

I’ll keep my readers posted.