Burke wins appeal for commercial landlord

BOSTON (January 22, 2010) – Partner Jennifer E. Burke recently persuaded the Massachusetts Appeals Court to dismiss the personal injury claim of a former ship repair employee who alleged he was injured while working in a dry dock owned by Burke’s client and leased to the man’s employer.

The worker claimed Burke’s client negligently failed to maintain a metal ladder attached to the inside wall of the dry dock. The ladder fell and struck him after being accidentally knocked loose by co-workers.

However, the court adopted Burke’s argument that her client as a commercial landlord had no contractual duty to repair the dry dock under the extensive commercial lease with the ship repair company. The court found that the ship repair company, which controlled the entire dry dock under the lease, accepted the premises “as is” when it signed the document and it agreed to maintain and repair the facility.

The man’s former employer leased the dry dock from Burke’s client, which owns 200 acres and 3-million square feet of building space on Boston’s Inner Harbor. Burke argued that under Massachusetts law a commercial landlord is liable in tort for personal injuries only if either: (1) it contracted to make repairs and made them negligently, or (2) the defect that caused the injury was in a “common area” or other area adjacent to the leased area over which the landlord had some control.

Also, if a tenant occupies the entire leased premises and no common areas are used by others, the tenant is responsible for keeping the premises safe, Burke argued, absent a contractual undertaking by the landlord to do so.

The Appeals Court also noted that a commercial landlord’s retention under a lease of a broad right to preserve its property does not mean it has made contractual promises to make specific repairs.

“I’m pleased for my client that it will not face any liability in this case. The law is clear that it had no duty to repair the ladder in question,” Burke said. “Resolving this case short of trial is appropriate.”

About Taylor Duane

Taylor Duane is one of New England’s leading civil litigation law firms with offices in Boston and Providence. Its experienced trial attorneys appear regularly in the federal and state courts of Massachusetts, Rhode Island and Connecticut. The Providence Business News has named the firm in 2008 and 2009 as one of Rhode Island’s Best Places to Work.