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15-P-1500                                             Appeals Court

   ERIC HALBACH & another1     vs. NORMANDY REAL ESTATE PARTNERS
                               & others.2


                             No. 15-P-1500.

        Suffolk.       September 12, 2016. - November 18, 2016.

            Present:    Kafker, C.J., Milkey, & Blake, JJ.


Practice, Civil, Summary judgment. Negligence, One owning or
     controlling real estate, Use of way, Duty to prevent harm,
     Pedestrian. Way, Public: defect.


     Civil action commenced in the Superior Court Department on
February 17, 2012.

     The case was heard by Robert L. Ullmann, J., on a motion
for summary judgment.


     Michael B. Bogdanow (John J. Carroll, Jr., with him) for
the plaintiffs.
     Matthew Kirouac for the defendants.


    BLAKE, J.      Plaintiff Eric Halbach (Halbach) suffered

serious injuries when he fell as a result of uneven pavement on

    1
        Kathleen Halbach.
    2
       100 & 200 Clarendon Street LLC; Normandy Fundsub
Management Co., LLC; Normandy Development and Construction
Services LLC; and Normandy PRC, LLC.
                                                                     2


a public sidewalk adjacent to a commercial building owned by

defendant 100 & 200 Clarendon Street, LLC (Clarendon), and

operated, leased, and maintained by one or more of the remaining

defendants (collectively, Normandy).    Halbach and his wife,

Kathleen Halbach, subsequently filed a complaint alleging that

the defendants had a duty to either repair the sidewalk or warn

pedestrians and the city of Boston (city) of the hazard.

Concluding that no such duty exists, a judge of the Superior

Court allowed the defendants' motion for summary judgment.      We

agree, and affirm.

     Background.    The following undisputed facts are taken from

the summary judgment record.    On June 4, 2009, Halbach was

walking on Clarendon Street in the city, near the John Hancock

garage (garage).    He tripped and fell on uneven payment on a

part of the sidewalk directly adjacent to the garage, sustaining

significant injuries as a result.3    The sidewalk where Halbach

fell is owned by the city.    At the time of the fall, the

commercial property adjacent to the sidewalk was owned by

Clarendon and maintained by Normandy.    After the incident,

Normandy hired a company to grind down the uneven payment at a

cost of $798.

     On February 17, 2012, the plaintiffs filed a complaint in

the Superior Court, which was amended on October 4, 2013.      The

     3
         Halbach suffered a bilateral quadricep tendon rupture.
                                                                      3


amended complaint alleges that the defendants were negligent in

their "ownership, control, maintenance and/or inspection" of the

sidewalk adjacent to the garage by their "failure to ensure a

safe pedestrian walkway" and their "failure to keep the area of

the walkway free from defects and conditions rendering it

unsafe."4   The defendants moved for summary judgment, contending

that there were no genuine issues of material fact and that they

were entitled to summary judgment as a matter of law.    After a

hearing, the judge allowed the motion for summary judgment,

concluding that the defendants owed no legal duty to the

plaintiffs and declining to create what the judge described as

"an entirely new duty."    This appeal followed.

     Standard of review.     "We review a grant of summary judgment

de novo to determine 'whether, viewing the evidence in the light

most favorable to the nonmoving party, all material facts have

been established and the moving party is entitled to a judgment

as a matter of law.'"     Juliano v. Simpson, 461 Mass. 527, 529-

530 (2012), quoting from Augat, Inc. v. Liberty Mut. Ins. Co.,

410 Mass. 117, 120 (1991).    See Mass.R.Civ.P. 56(c), as amended,

436 Mass. 1404 (2002).    "The moving party bears the burden of

affirmatively demonstrating the absence of a triable issue."

Lev v. Beverly Enterprises-Mass., Inc., 457 Mass. 234, 237


     4
       The amended complaint also includes counts against each
defendant for loss of consortium by Kathleen Halbach.
                                                                      4


(2010).    "Conclusory statements, general denials, and factual

allegations not based on personal knowledge [are] insufficient

to avoid summary judgment."     Madsen v. Erwin, 395 Mass. 715, 721

(1985), quoting from Olympic Jr., Inc. v. David Crystal, Inc.,

463 F.2d 1141, 1146 (3d Cir. 1972).

       Discussion.   The plaintiffs have conceded, both in their

brief and at oral argument, that there are no genuine issues of

material fact, agreeing that the question presented is one of

law.    They contend that the defendants owed a duty to the

plaintiffs to repair or warn of hazards on the public sidewalk

adjacent to their building.     The plaintiffs claim that the duty

stems from the defendants' right and power to exercise control

over the sidewalk, that the defendants breached that duty, and

that Halbach was injured as a result.

       "To prevail on a negligence claim, a plaintiff must prove

that the defendant owed the plaintiff a duty of reasonable care,

that the defendant breached this duty, that damage resulted, and

that there was a causal relation between the breach of the duty

and the damage."     Jupin v. Kask, 447 Mass. 141, 146 (2006).

Thus, in order to succeed on their claim of negligence, the

plaintiffs here must first establish that the defendants owed

them a legal duty of care.     The existence or nonexistence of

such a duty is a question of law and is, therefore, an

appropriate subject for disposition by summary judgment.      See
                                                                      5


O'Sullivan v. Shaw, 431 Mass. 201, 203 (2000); Remy v.

MacDonald, 440 Mass. 675, 677 (2004).

     The duties of an owner of land abutting a sidewalk or other

public way5 are limited.    Our case law establishes that such an

owner must only "refrain from using his land or maintaining

conditions or structures thereon in a manner which will

interfere with the safety and convenience of travelers on the

public way."   Pritchard v. Mabrey, 358 Mass. 137, 140 (1970).

See ibid. (discussing duty owed to pedestrian injured on public

sidewalk by private abutting landowner).     In other words, an

owner is charged with the negative duty of refraining from

creating an unsafe condition on the public way adjacent to his

property, but no more.     Ibid.   See Farolato v. Springfield Five

Cents Sav. Bank, 310 Mass. 806, 808 (1942) ("Unless the unsafe

condition of the sidewalk resulted from a wrongful act or

omission of the defendant, it had no duty -- breach of which

would constitute negligence -- to keep the sidewalk in a

reasonably safe condition for the use of travellers"); Mays v.

Gamarnick, 326 Mass. 139, 141 (1950), and cases cited (abutter

has no obligation to repair unsafe adjacent public sidewalk when

condition is caused by an unrelated third party); Wallace v.

Folsom's Mkt., Inc., 343 Mass. 177, 178-179 (1961) (defendant

     5
       See Diamond v. Newton, 55 Mass. App. Ct. 372, 374 (2002)
(public way consists of entire width of dedicated land,
including the road and sidewalk).
                                                                   6


abutter had no duty to correct condition on public sidewalk

where no evidence was presented that condition was caused by any

act or omission of the defendant).

     It is not surprising, then, that the plaintiffs cite no

Massachusetts authority imposing an affirmative duty on

landowners to inspect the public sidewalks adjacent to their

land and, if a defect is discovered, a corresponding duty to

either cure or notify the governing municipality.6   Rather, as we

have said, our case law establishes that the mere ownership of

property abutting a public sidewalk is insufficient to create a

duty to repair or warn of hazards on a sidewalk, particularly

when it is a preexisting defect, not of the owner's creation,

that caused the injury.7   See Kirby v. Boylston Mkt. Assn., 14

Gray 249, 252 (1860) (abutting landowners "are not responsible


     6
       The plaintiffs rely upon cases from other jurisdictions to
establish a duty here. See, e.g., Stewart v. 104 Wallace St.,
Inc., 87 N.J. 146, 157 (1981) ("[C]ommercial landowners are
responsible for maintaining in reasonably good condition the
sidewalks abutting their property and are liable to pedestrians
injured as a result of their negligent failure to do so"). The
out-of-State cases are not controlling here, and are
inconsistent with our common law.
     7
       The case of Papadopoulos v. Target Corp., 457 Mass. 368
(2010), cited by the plaintiffs, is inapposite. First, it
involved an accident that occurred on a private parking lot.
Id. at 369. Second, in that case, the Supreme Judicial Court
abolished the distinction between the natural and unnatural
accumulation of snow and ice and applied the standard of
reasonable care to injuries resulting from any such
accumulation. Id. at 383-384. The injury here did not result
from an accumulation of snow or ice.
                                                                      7


to individuals for injuries resulting to them from defects and

want of repair in the side walk").     Applying this legal standard

to the facts here, where it is undisputed that the sidewalk upon

which Halbach fell is owned by the city, and abuts the

defendants' garage, and it is uncontroverted that the uneven

sidewalk was not caused by an act or omission of any of the

defendants, the plaintiffs have failed in carrying their burden

to establish that the defendants owed them a duty of care.

     The plaintiffs nevertheless claim that, because the

defendants exercised control over the sidewalk, their lack of

ownership does not shield the defendants from liability.    The

plaintiffs contend that Normandy's act of grinding down the

pavement after Halbach's fall is evidence of the defendants'

control of the sidewalk.8   The argument overlooks the facts

specific to this case.

     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."     Davis v. Westwood

Group, 420 Mass. 739, 744-745 (1995), citing Underhill v.

Shactman, 337 Mass. 730, 733 (1958).    That general principle


     8
       The plaintiffs correctly concede that "[e]vidence of
postaccident safety improvements is not admissible to prove
negligence." Martel v. Massachusetts Bay Transp. Authy., 403
Mass. 1, 4 (1988). They also correctly argue, however, that
such improvements can be introduced on the issue of control.
See Mass. G. Evid. § 407 (2016).
                                                                      8


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.     See generally Underhill,

supra (examining parties' commercial lease to determine who

retained control over maintenance of shopping center parking

lot).     Second, the city, which is the owner of the sidewalk

here, is a public entity statutorily tasked with control of

sidewalk maintenance and repair.     See G. L. c. 84, § 1, as

amended by St. 1991, c. 552, § 52 ("[T]own ways . . . shall be

kept in repair at the expense of the town in which they are

situated, so that they may be reasonably safe and convenient for

travelers"); Myers v. Lee, 8 Mass. App. Ct. 874 (1979); Farrell

v. Boston Water & Sewer Commn., 24 Mass. App. Ct. 583, 587

(1987) (defect on public sidewalk falls within scope of G. L.

c. 84).    Compare Davis, supra at 747 (holding that the power to

control a State highway "lies with the State, and not with

nongovernmental parties"); id. at 745, quoting from G. L. c. 81,

§ 13 (1992 ed.) ("State highways shall be maintained and kept in

good repair and condition by the department [of highways] at the

expense of the commonwealth").9


     9
       For this reason, the plaintiffs' reliance on Marsden v.
Eastern Gas & Fuel Assocs., 7 Mass. App. Ct. 27 (1979), is
misplaced. Although Marsden recognized that premises liability
may depend upon the defendant's control of the property, it did
                                                                    9


     Our conclusion also comports with the Commonwealth's

"elaborate and comprehensive statutory system" establishing

municipal liability for injuries resulting from defects in

public ways.   Huff v. Holyoke, 386 Mass. 582, 585 (1982).    See

ibid. (holding that by framing her complaint in terms of common-

law nuisance, the plaintiff could not avoid the statutory limit

on the recovery of damages against a municipality); G. L. c. 84,

§§ 1, 15.   See also DiNitto v. Pepperell, 77 Mass. App. Ct. 247,

249-250 (2010).

     Conclusion.   There is no dispute that Halbach fell on

uneven pavement on a public sidewalk and, as a result, sustained

personal injuries.   It is also undisputed, however, that the

defendants did not create or contribute to the conditions of the

sidewalk.   In the absence of such evidence, under the common law

as it presently exists in Massachusetts, the defendants had no

duty as abutting commercial property owners to repair or warn of

hazards on the public sidewalk.10

                                    Judgment affirmed.


so in the context of a claim involving a private way. Id. at
29.
     10
        There is no merit to the plaintiffs' contention that the
motion judge erred in failing to consider the testimony of their
expert witness. They concede that the testimony did not
establish the defendants' duty, but argue that the testimony was
useful to establish the scope of that duty. As the defendants
owed no duty of care to the plaintiffs, the testimony, which
described industry standards regarding the scope of the duties
of commercial landowners in maintaining abutting sidewalks, was
not relevant.
     MILKEY, J. (concurring).   I agree with the majority that,

under current case law, the defendants had no duty to repair the

publicly-owned sidewalk abutting their property, or to warn

people of the defects there.    In fact, such a rule has long been

established.   See, e.g., Kirby v. Boylston Mkt. Assn., 14 Gray

249, 252 (1860).   Whether to alter that rule is a question that

properly falls to the Supreme Judicial Court.   I write

separately to note that the plaintiffs have a more forceful case

for such a change in the law than the majority opinion suggests.

     In declining to recognize that owners of property abutting

a public sidewalk owe a duty to members of the public to keep

the sidewalk in good repair, the cases treat public sidewalks

the same as highways or other public ways.   See Pritchard v.

Mabrey, 358 Mass. 137, 140 (1970).1   However, sidewalks are

different from highways in various important respects.    A

highway is an unmistakably public space that is subject to the

sole control of the public entities with jurisdiction over it.

Indeed, a private party who exercised self-help to improve a

public street would be far more likely to face arrest than

municipal expressions of gratitude.   By contrast, as this case


     1
       In fact, at least for some purposes, a public sidewalk
that lies within the right of way created for a street is
considered as part of the public way. See Diamond v. Newton, 55
Mass. App. Ct. 372, 374 (2002) (injury caused by defect in area
between road and sidewalk held subject to the liability cap
applicable to public ways set forth in G. L. c. 84, § 15).
                                                                    2


illustrates, municipalities regularly look to private property

owners to keep sidewalks adjacent to their property passable and

safe.2   Moreover, at least as to commercial property, the owners

themselves accept that responsibility.   For example, in her

deposition, an employee who managed the property for defendant

Normandy Real Estate Partners acknowledged her understanding

that her employer had "the responsibility to order repairs and

maintenance to the property to keep it free of tripping

hazards."   In furtherance of that understood responsibility, and

presumably so that its employees, customers, and other members

of the public could use the sidewalk without getting hurt, the

defendants repaired the sidewalk in question after Eric

Halbach's accident.3   This is strong evidence that the defendants

in fact exercised control over the sidewalk, even if title to it




     2
       I recognize that municipalities' placing such
responsibilities on abutting landowners is not new. In fact, in
Kirby v. Boylston Mkt. Assn., supra, a case that appears to
involve a sidewalk along the very same street at issue in the
case before us, the Supreme Judicial Court recognized that, as
of 1860, "by ordinances of the city [of Boston], it is made the
duty of abutters, under prescribed penalties, to keep the side
walks adjoining their estates in good repair, and seasonably to
remove all snow and ice therefrom." 14 Gray at 252. The court
nevertheless rejected the plaintiff's argument that the owner of
the abutting property therefore owed him a duty to keep the
sidewalk in good repair. Id. at 252-253.
     3
       Notably, the invoice for the repair refers to the walkway
that was repaired not as a public sidewalk but as the "Parking
Garage Walkway."
                                                                   3


technically lay with the city of Boston (city).4   See generally

Davis v. Westwood Group, 420 Mass. 739, 744-745 (1995) ("[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").5

     Although the responsible behavior that the defendants

exercised here in fixing the problem is laudable, it is hardly

exceptional.   As evidenced by the plaintiffs' summary judgment

submittals, the commercial real estate industry recognizes that



     4
       While a defendant's postaccident repairs are not
admissible to prove negligence, they can be admitted to
demonstrate control where that issue is in dispute. See Mass.
G. Evid. § 407 (2016).
     5
      The majority appears to take the position that no duty can
attach to a defendant absent an express "right to control" the
property where the injury took place. As a legal proposition,
this is not entirely clear under Massachusetts law. See Cohen
v. Elephant Rock Beach Club, Inc., 63 F. Supp. 3d 130, 141 (D.
Mass. 2014) (interpreting Davis v. Westwood Group, supra,
narrowly). The summary judgment record is somewhat incomplete,
and despite the fact that reliable versions of municipal
ordinances and by-laws now may be as generally accessible as
statutes, case law from another era precludes us from taking
judicial notice of the current version of Boston sidewalk
ordinances. See Cerwonka v. Saugus, 316 Mass. 152, 153 (1944).
Nevertheless, there has been some showing that the defendants
had a right to control the sidewalk abutting their property.
Especially viewed against the historical practice -- recognized
by the case law -- of municipalities' relying on private parties
to keep sidewalks in good repair, I think the defendants' right
to control the sidewalk reasonably can be inferred by their
exercise of such control here. The fact that the city
presumably retained final say over any such repairs does not
mean that the defendants lacked a "right to control" the
sidewalk (as that term is used by the case law).
                                                                    4


managers of such property have a responsibility to keep the

public sidewalks adjacent to their property "in a proper state

of repair, and maintained free from hazardous conditions."6   In

short, at least in the context of commercial property, 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.   See Stewart v.

104 Wallace St., Inc., 87 N.J. 146, 157 (1981) ("[C]ommercial

landowners are responsible for maintaining in reasonably good

condition the sidewalks abutting their property and are liable

to pedestrians injured as a result of their negligent failure to

do so").    See also Pittsburgh v. United States, 359 F.2d 564,

566 (3d Cir. 1966) ("Under Pennsylvania law the owner or tenant

in possession of property has a primary obligation to keep the

abutting sidewalk in repair").7   Without a change in the common-

law liability rules (or a legislative change to the statutory

cap on municipal liability), parties who have become injured as

the result of a sidewalk defect may be left without an effective


     6
       Of course, industry standards by themselves do not
establish the presence (or absence) of a legal duty. But that
does not make them irrelevant.
     7
       Compare Heman v. Franklin, 99 Mo. App. 346, 348 (1903)
(where landowner failed to comply with city's regulation
requiring abutter to repair public sidewalk, city may recover
the costs of repair).
                                                                  5


remedy, regardless of whether the private property owners

charged with maintaining the sidewalk have violated a duty that

they themselves recognize.
