Boston, MA Lawyer Blog

Massachusetts law imposes certain duties on landowners and persons in control of real property.  Homeowners and business owners alike have a responsibility to maintain their premises for the safety of visitors, guests, patrons, and—to a degree—even trespassers.

Under the common law, premises liability was entirely dependent on whether the injured person was an invitee, licensee, or trespasser.  But in 1973, the Massachusetts Supreme Judicial Court made dramatic changes to the law, abandoning any distinction between invitee and licensee, and determining that a landowner must act as a reasonable person would in maintaining his property in a “reasonably safe condition in view of all the circumstances,” which includes the risk of injury, severity of likely injuries, and ease of taking steps to avoid the risk of injury.

A number of factors can be relevant to this determination of reasonable foreseeability, including the time, manner, place, and circumstances surrounding the invitee’s presence on the property.  For example, liability may differ for a last-minute guest compared to a long-expected guest.

In addition to the duty to maintain the premises in a reasonably safe manner, landowners also have a duty to warn visitors of any dangers or defects on the property.  Tenants and other occupiers of the property are also subject to this duty to warn.  Landowners and land occupiers need only warn of non-obvious defects.  Whether or not a defect is obvious, however, is almost always a question of fact to be decided by a jury and can involve consideration of whether it was obvious to the specific guest, including whether that guest was a child.  In sum, the landowner or occupier is required to act with a duty of care that is appropriate for the class of visitors.

Nevertheless, there is no duty to warn where the danger or defect is obvious.  If a person with ordinary intelligence could have foreseen the danger, the landowner cannot be held liable for failing to warn.  For example, courts have held that there is no duty to want about the danger of placing a board through the top of a moving elevator.  Similarly, there is no duty to warn customers at a gas station that there are other cars in the vicinity.  These are obvious dangers, for which a reasonably intelligent person should have been able to anticipate without any warning.

Depending on the case, a landowner and tenant can both be held liable for a failure to maintain the premises reasonably safe or a duty to warn of a hazard.  Whoever is “in control of” the premises at the time of the injury is liable for those injuries.  Although ownership is certainly an important factor, tenants are not immune from liability.  For example, a tenant business has a duty to warn customers of defects on the property.  Even if it is the legal responsibility of the landowner to maintain the property, a tenant cannot avoid liability where he or she knew or should have known about the defect and failed to warn customers.

Although some states offer greater protection to trespassers, Massachusetts has limited the ability for unlawful trespassers to seek damages from property owners under the common law.  In Massachusetts, landowners’ only duty to trespassers is to refrain from willful, wanton or reckless disregard for the trespasser’s safety.