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What is the Massachusetts Law For an Accident on Someone’s Property?

For 40 years, we have followed the doctrine of Mounsey v. Ellard, 363 Mass. 693 (1973): a landowner owes all those lawfully on the premises a duty of reasonable care. In issuing that landmark decision, the Supreme Judicial Court of Massachusetts, abolished the distinction between licensees and invitees. Thus, there is no need for us to focus on what distinguished a licensee from an invitee. Suffice it to say, the SJC found that “it no longer makes any sense to predicate the landowner’s duty solely on the status of the injured party.” Mounsey at 706. You will note that trespassers have always been treated differently and the duty owed to them by an owner of property is to refrain from willful, wanton or reckless conduct.

What does all this mean? In the context of accidents and injuries on property or premises, we, as the attorneys for the injured party, need to show that a landowner has failed to act reasonably in maintaining his or her property in view of all the circumstances. You can say that we follow a formula: what is the likelihood of an injury, the potential seriousness of an injury and the burden of avoiding the risk of an injury? This is a formula that was taught to me in law school and I use it to assess the merits of every personal injury case that occurs because of an accident on property.

The issue of foreseeability always comes up. The courts instruct juries on duty and foreseeability. (Even in the likely case of a settlement, we always are guided by what will happen in the courtroom.) The court will ask whether the injury on the property was a foreseeable risk of the alleged negligent conduct.

The rule of Mounsey has not changed in forty years. This continues to be the law of the Commonwealth. Judges instruct juries along these lines and it is up to juries to determine if, in fact, there has been a breach of the duty of reasonable care. The focus is on the conduct of the landowner and not on the status of the person on the property.

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