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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 commonlaw 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 commonlaw 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.