Landowner's Liability for Dangerous Conditions on Adjacent Property
by Roger T. Manwaring

If you own a retail store, or other business open to the public, you no doubt are aware that you owe those who lawfully enter your business premises a duty to use reasonable care to keep the property in safe condition. If you negligently fail to do so, and if one of your customers or a delivery person is injured as a result, you may be liable for damages. Therefore, most owners of commercial property take precautions to avoid such premises liability.
 

You might not know, however, that your potential premises liability may sometimes extend to dangerous conditions off-premises, well beyond your property line. This is particularly the case if your business utilizes an off premises area for commercial purposes.
 

Consider, for example, a pizza restaurant located across the street from a high school. A public sidewalk runs between the store restaurant and the road. The restaurant is very popular with the students, who come in large numbers to eat lunch each day.
 

The restaurant has minimal seating and is aware that most of its customers congregate and eat their pizza on the public sidewalk between the restaurant the road. In fact, the restaurant has placed trash cans on the sidewalk and periodically cleans up litter left on the sidewalk by its customers. As a natural and foreseeable result of the congregation of large numbers of teenagers in crowded conditions on the sidewalk, horseplay occurs and one of the students leaves the sidewalk, enters the street and is hit by a passing car.
 

Under these circumstances, the restaurant owners could be held liable for injuries resulting from dangerous conditions on the sidewalk (the lack of fencing or other barrier to separate it from the street), even though the sidewalk was not owned by the restaurant.
 

A landowner owes any person lawfully on the owner’s property a duty to exercise reasonable care with regard to the condition of the premises. However, Massachusetts courts have repeatedly stated that a landowner’s duty does not necessarily terminate at the legal boundary lines of the premises, but instead extends to a duty to protect against foreseeable dangers on adjacent property.
 

In one case, the court held a city liable for failing to maintain a fence between school property and adjacent railroad property. The plaintiff was a student who was injured while crossing the railroad tracks on his way to school. He crossed the tracks in order to gain access to the school through a hole in the fence maintained by the school. The court stressed that the city knew students regularly crossed the tracks to enter school property through the hole in the fence, and thus were aware of the danger posed by the failure to maintain the fence.
 

In the case of the pizza restaurant, the business owners might be liable for injuries occurring off premises on the sidewalk to the extent that their on-premises activities (selling pizza to students despite having inadequate facilities to seat them indoors) created or contributed to the risk that students on the sidewalks would be harmed by traffic on the Street. Discussing a landowner’s off-premises liability, one court said “Generally, where a landowner creates a foreseeable zone of risk, a landowner has a duty either to lessen the risk or take sufficient precautions to protect invitees from the harm the risk poses.... Thus, a landowner may be required to protect invitees on nearby property if a landowner’s foreseeable zone of risk extends beyond the boundaries of its property.”
 

Even if the business owner’s on-premises activities do not create the off-premises danger, the owner may still be liable if (a) the owner either controlled the off premises area or the person injured could reasonably have believed that the owner controlled it and (b) the owner knew that its invitees, including the injured person, regularly used that area in connection with the invitation. This is particularly true when the landowner uses the adjacent land for his commercial advantage. In the case of the pizza restaurant, the owner might be liable if the owner’s knew that the students used the sidewalk as the restaurant’s de facto dining room and if the injured student might reasonably have believed that the restaurant controlled the sidewalk (because it had place trash cans on the sidewalk).
 

A landowner might also incur off-premises liability where the owner’s business uses an off-premises, non-owned lots as its de factor customer parking lot, but fails to maintain the lot in safe condition. In one case, a warehouse was held liable for injuries received by a truck driver while his truck was parked in the center left turn lane of a nearby street while making a delivery to the warehouse, because the warehouse had inadequate loading docks and used the street as a de facto part of its property.
 

The danger of off-premises liability is clear. If you operate a business that utilizes, for commercial advantage, a non-owned, off premises area, whether public land or owned by another private person, you should inspect that area to ensure its safe condition. You should also inspect any areas located between the area you use and your place of business, over which your customers will have to travel. Simply keeping you premises safe is no longer enough.
 

If you have questions regarding this or any other legal matter, please contact Roger T. Manwaring at rtm@barronstad.com or (617) 531-6584.