Wallace v. Folsom's Market, Inc.
Wallace v. Folsom's Market, Inc.
Opinion of the Court
The Appellate Division vacated a finding for the plaintiff in this action of tort for negligence and ordered
The only question is whether there was sufficient evidence to warrant a finding for the plaintiff.
It is settled that “an abutter in control and occupation of premises as between himself and the public must exercise reasonable care to maintain his premises in a . . . [reasonably] safe condition so as not to cause injury to the public travelling on the way, and if he knows or ought to know that the use which he is making or permitting to be made of his premises is rendering the public way dangerous for those passing along the way, he may be found liable to a pedestrian who thereby sustains an injury. ...” Mays v. Gamarnick, 326 Mass. 139, 141, and cases cited. It is equally well settled that “ [u]nless 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. Nelson v. Economy Grocery Stores Corp. 305 Mass. 383, 387.” Farolato v. Springfield Five Cents Sav. Bank, 310 Mass. 806, 808.
There is no evidence that the frame of the bulkhead was not properly installed or that at the time of the accident it was not in the same condition or in the same position as it was at the time of the original installation. A finding was not warranted that the bulkhead was defective. Lucas v. Boston, 313 Mass. 495, 497. Nor is there any evidence that the hole in the sidewalk where the plaintiff fell or the difference in level between the metal frame and the existing surface of the sidewalk resulted from any act or omission of the defendant. Hence it had no duty to correct the condition.
It follows that the defendant’s request that a finding of negligence was not warranted should have been given.
Order of Appellate Division affirmed.
Reference
- Full Case Name
- Dorothy Wallace v. Folsom's Market, Inc.
- Cited By
- 6 cases
- Status
- Published