Injuries on Commercial Properties

snowy parking lotA recent Appeals Court decision serves as a reminder of the many factual issues that may become important for lawyers to consider when bringing a claim for injuries suffered on a commercial or business property.  Navarro v. Bond involved the intersection of two legal principles: the application of the worker’s compensation statutes to injuries suffered by an employee while at work, and the limited  responsibility of a commercial landlord for injuries suffered on its property.

The plaintiff in Navarro was injured when she fell in the icy parking lot of her workplace.  The premises were leased to her employer, Bond Brothers, Inc., and owned by a related family trust, Spring Realty.  The plaintiff’s employer, Bond Brothers, had always been responsible for general maintenance and snow removal at the property.  It received no payment from the nominal landlord, Spring Realty, for these services.  There was no evidence that Spring Realty retained any control over the leased property.

The worker’s compensation statute compensates employees for injuries suffered at work, regardless of whether the employer was negligent, but provides very limited recovery of damages compared to normal tort law.  When an employee receives worker’s comp, she cannot sue the employer for tort damages.  This law limited Ms. Navarro’s recovery unless she could show that some other person or entity was responsible.

The logical entity would be the owner of the property–but the liability of a commercial landlord is rather limited.  As the Navarro case reminds us, a commercial landlord is liable for injury on the leased property only if 1) it has a contractual obligation to repair or maintain the property, or 2) the injury occurs in a common area over which the landlord retains some measure of control.  Since Spring Realty had nothing to do with the maintenance or operation of the business property, it had no liability for injuries.

The question of the landlord’s liability in Navarro became important because the plaintiff could not recover tort damages from her employer, but it may also arise in other contexts.  When the tenant business is uninsured or poorly insured, it may be important to look for other responsible parties.  When the injury occurs in a common area such as a hallway or parking lot, it may be difficult to figure out whether the landlord, the tenant, or both, were responsible for taking care of that area.  The issue is more complicated where there are multiple business tenants.

These issues can make a relatively simple “slip and fall” case more complicated, as it may require investigation to learn about the relationships of the parties and their relative responsibilities.  The situation can become even more difficult where management companies, maintenance or cleaning contractors, and other third parties are involved.

Case Law Update: Chapter 93A and the Building Code

basement stairsThe Supreme Judicial Court held last week that violations of the Massachusetts building  code may form the basis for liability under the Consumer Protection Statute, General Laws Chapter 93A.  In Klairmont v. Gainsboro Restaurant, Inc., the SJC affirmed a judge’s finding of liability, holding that the defendant bar could be liable for the death of a college student who tumbled down a set of cellar stairs that violated multiple sections of the building code.

The stairs in question led from a back hall down to a cellar used for storage, and had been constructed in the early 1980s without obtaining required building permits.  The plaintiffs produced evidence that the stairs did not comply with several applicable sections of the building code, including the lack of a self-closing door, a landing at the top of the stairs, specific riser and tread dimensions, and a hand rail.   A kitchen manager at the restaurant had complained to the owner that the stairs were dangerous, and that both she and a sales representative had fallen on the stairs.

The plaintiffs’ son, a student at Northeastern, had apparently entered the back hallway to find a quiet place to take a phone call.  An employee found him a short time later at the bottom of the stairs with a fractured skull and a brain bleed, which proved to be fatal.  A jury found the bar negligent, but that the negligence did not cause the young man’s death; the judge, as permitted by G.L. c.93A, decided the causation question in favor of the plaintiffs.

While finding that not every building code violation would serve as a basis for liability under G.L. c.93A, the Court held that code violations that were “unfair or deceptive acts” that occurred in the course of trade or commerce might warrant recovery.   The Court noted that the defendants had knowingly violated the building code for more than 20 years, thereby creating a hazard in a place where alcohol is served.

The application of 93A, with its potential for multiple damages and attorney’s fees, is a powerful weapon for plaintiffs in premises liability cases.   While the SJC was careful to note that only a limited class of building code violations would rise to the level of 93A violations, in appropriate cases, a 93A claim will give the plaintiff important options to a traditional negligence action.   This remedy has long been available to plaintiffs in other types of personal injury claims, such as defective products.

An interesting feature of Klairmont is that the judge found in favor of the plaintiff after a jury had rejected their negligence claim.   This is permitted because the judge, who is the factfinder in the 93A claim, is not bound by the jury’s decision, and is free to make her own, in this case contrary, factual findings.  This result underscores what many experienced plaintiff’s lawyers have known for years–that jury-waived trials are not always to be feared, as many judges have not fallen prey to the tort reform propaganda that has infected many jury pools.

Klairmont also contains an extensive discussion of what damages may be recovered on the 93A claim, which will be the subject of a post later this week.

The Supreme Judicial Court’s decisions are available on its public website.

Case Law Update: Trampolines and Swimming Pools

pool_warning_signsReversing a lower court decision, the Supreme Judicial Court yesterday held that a homeowner who created a dangerous condition on his property may be liable to a visitor injured by the danger, even if the risk of harm was obvious to the visitor.  The case, Dos Santos v. Coleta, marks the second time this week that the SJC has ruled that the potential liability of a tort defendant turns on whether the defendant’s negligence was a factor in creating the danger–as opposed to simply failing to warn of the danger–the first case was discussed in a previous post.

Dos Santos involved a man who suffered a serious spinal cord injury when he attempted a flip off a trampoline into an adjacent wading pool.  Despite acknowledging that he knew it might be dangerous, the defendant homeowner had deliberately placed the two-foot-deep pool next to the trampoline–and even positioned the trampoline’s ladder in the pool–because he thought it would be “fun.”  In fact, a warning against jumping and diving (in the plaintiff’s and defendant’s native Portuguese) and an accompanying pictograph were clearly printed on the side of the pool.

The homeowner in Dos Santos raised the “open and obvious danger” defense–a legal principle that states that a landowner has no duty to warn about dangers on his property that would be “obvious to a person of average intelligence.”  The Court agreed that the property owner had no duty to warn visitors, but ruled that he could still be responsible for his negligence in failing to remedy an open and obvious danger that he himself had created and maintained.  The Court noted that the homeowner admitted that he had seen visitors jumping from the trampoline into the pool–not surprising given his testimony that he had chosen the location for the trampoline specifically to permit this activity.

The Court took pains to distinguish Dos Santos, where an affirmative, deliberate action of the landowner created the danger, from other cases such as O’Sullivan v. Shaw, where the only negligence alleged was a failure to warn about the danger.  This distinction is important for lawyers considering similar cases, in the need to focus on actions, rather than inactions of the defendant.  Where the potential defendant had a hand in creating the dangerous condition, the principle of Dos Santos would impose liability, even if the danger was apparent.

The plaintiff’s case isn’t out of the woods yet, however.  The SJC’s decision focuses only on the defendant’s conduct, and  at a second trial, the jury will be told to consider whether the man was negligent in attempting the flip into the pool, and to compare that negligence to the homeowner’s conduct.

The Supreme Judicial Court’s decisions are available on its public website.