Arguing Against Extending to Massachusetts Commercial Landlords the Same Duty of Care That Is Owed to Residential Tenants

The issue before the Massachusetts Supreme Judicial Court (“SJC”) in this appeal was whether the same affirmative duty that requires a residential landlord, under Young v. Garwacki, 380 Mass. 162 (1980), to maintain the leased premises in a reasonably safe condition should also apply in certain circumstances to commercial landlords. The injured party in this case was the sole employee of a small t-shirt printing company that had rented an entire building from the defendant landlord. It is alleged that the employee fell and was injured while descending a defective stairway. The employee received workers’ compensation for his injuries and then sued the landlord in Massachusetts Superior Court for negligently failing to repair the faulty staircase. Under the common law rule in Massachusetts, a commercial landlord (unlike a residential landlord) is not liable for injuries that occur on the leased premises unless the lease states otherwise. The tenant is solely responsible for the area that it has leased, while the landlord’s responsibility only extends to common areas. In this case, because the tenant had rented the entire building, the landlord would not be liable under the common law for the injuries that the employee allegedly suffered as a result of a defective staircase. 


Based on the common law rule, the Superior Court granted summary judgment for the defendant landlord. The plaintiff appealed and the SJC granted direct appellate review. Subsequently, the SJC requested amicus curiae briefs to address the question “whether a commercial landlord may be held liable for personal injuries suffered by the sole employee of a small commercial tenant, caused by an unsafe condition in the rented premises existing before the lease was entered into.” The form of this question reflected the plaintiff’s central argument, which was that the small business tenant in this case resembles a residential tenant sufficiently to warrant extending the affirmative duties of a residential landlord under Young v. Garwacki to a commercial landlord. 


NELF filed an amicus brief on its own behalf and on behalf of the National Association of Industrial and Office Properties (“NAIOP”), supporting the defendant landlord’s argument against a departure in this case from the common law rule in the commercial lease context. In its brief, NELF pointed out the fundamental difference between commercial and residential leases, emphasizing the importance of preserving the parties’ freedom to contract and allocate risks in the business context. NELF argued that the reasons which led to greater protection for residential tenants (a trend which paralleled the growth of consumer protection law), such as concerns about unequal bargaining power and vulnerability, do not apply in the business context, even where a small business is involved. Unlike a residential lease, a commercial lease is basically a business contract, typically negotiated at arm’s length between parties of relatively equal bargaining power who are often represented by counsel, as was the business tenant in this case. NELF also argued that, unlike residential tenants, businesses have a strong incentive to maintain a safe and productive workplace, to avoid disruption of the flow of business, and to minimize workers’ compensation liability.  For these reasons, NELF argued that this case does not justify a departure by the SJC from the common law rule upon which every existing commercial lease in the Commonwealth is based.  


The SJC agreed with NELF’s position, adopting many of NELF’s arguments that distinguish residential from business tenants, regardless of the size of the business, and declined to extend Young v. Garwacki to commercial leases.  As the Court, agreeing with NELF, observed: “[T]he bargaining power of commercial tenants at the lease drafting stage is ordinarily greater than that of residential tenants . . . [and] [e]ven a small commercial tenant . . . would have an incentive to make repairs, for example, to avoid workers’ compensation claims and to maintain an orderly and productive business without injuries to employees or customers.”  

Arguing that a Redevelopment Authority May Not Rely on 20-Year-old Factual Findings to Expand the Scope and Time Limits on an Urban Redevelopment Zone

The Massachusetts Supreme Judicial Court (“SJC”) had before it in Central Steel a challenge to the Somerville Redevelopment Authority (“SRA”) with respect to the Assembly Square Redevelopment Plan (“Plan”).  The original 20-year Plan, initiated in 1980, was based on a statutorily required finding that the Assembly Square area was “substandard, decadent, or blighted.” In 2002, two years after the Plan expired, the SRA approved a 20-year extension and a change in the project’s proposed uses, without considering that development since 1980 might have changed the character of the area.  The 2002 Plan change proposed, inter alia, the eminent domain taking of Central Steel Supply Co. (“Central Steel”).  The original Plan, in contrast, had envisioned a continuing presence for Central Steel and other light industries.  

Based on the original Plan, the owners of Central Steel had continued to invest in their property since 1980.  Central Steel challenged the 2002 Plan change and NELF filed a supporting amicus brief in the SJC arguing, inter alia, that under the “public exigencies” requirement of the Massachusetts Constitution, a taking of Central Steel’s property could not be based on the obviously stale findings that justified the original 1980 Plan.  NELF argued that not requiring a new determination of the site’s condition would discourage property owners in redevelopment zones from investing in their properties, since these might be taken by eminent domain at a later date without significant government review. 

The SJC rejected Central Steel’s challenge, focusing entirely on the administrative requirements for redevelopment plan changes, which it found SRA had met.  While not addressing NELF’s constitutional argument, the SJC reserved decision on the planned, but not yet initiated, taking of Central Steel’s property by eminent domain.  This leaves open the possibility that it would later address whether the Massachusetts Constitution forbids a taking based on stale factual findings when a challenge to such a taking is properly before it.

Opposing the Unwarranted Extension of the Army Corps of Engineers’ Jurisdiction over Inland Wetlands

This Supreme Court case  dealt with the extent of the Army Corps of Engineers’ (“Corps”) regulatory authority over the nation’s wetlands under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (“CWA”).  Pursuant to the CWA, a permit must be obtained from the Corps before dredged or fill material may be discharged into “navigable waters.” Id., §1344(a), (c), (d); discharge without such a permit can lead to criminal or civil liability.  Id., § 1319. “Navigable waters” are defined by the CWA as “the waters of the United States, including the territorial seas.” Id. §1362(7).  The extent to which this definition embraces the nation’s wetlands has been a vexed question. Although initially construing its wetland jurisdiction narrowly, the Corps has more recently sought to extend its wetland jurisdiction under the CWA to virtually all wetlands and adjacent “buffer” zones nationwide.  The result has been a costly, duplicative regulatory regime for wetlands that are not adjacent to navigable waters and which are already regulated by state and local authorities.  

Before the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”), the Corps claimed that any wetland that was used as a habitat by migratory birds (in other words, virtually every wetland) qualified as “navigable waters” under the CWA.  After SWANCC, the Corps adopted as an alternative the expansive “hydrologic connection” theory, under which a wetland is “navigable waters” if water flows from it, whether intermittently or indirectly, through ground water or surface water, to navigable or tidal waters.  Under this approach, approximately 80% of all wetlands in the United States would be within the Corps’ jurisdiction.  Based on this “hydrologic connection” theory, a federal district court in Michigan and the Sixth Circuit found the Rapanoses liable under the CWA for grading and filling without a Corps permit three wetland parcels that were remote from navigable or tidal waters.  

The Supreme Court granted certiorari to determine whether, in asserting jurisdiction over the Rapanoses’ wetlands, the Corps had again exceeded its authority.  On behalf of itself and co-amicus Charles Johnson, a cranberry farmer in Carver, Massachusetts, who faces liability under the CWA for similar activities, NELF filed an amicus brief urging the Supreme Court to reject the “hydrologic connection” theory in favor of the Fifth Circuit’s interpretation of the CWA, which would limit the Corps’ regulatory authority to wetlands that are adjacent to actual navigable waterways.  NELF argued that the virtually unlimited authority claimed by the Corps created an onerous and unnecessary duplication of already existing state and local wetlands regulations.  NELF argued that, when it enacted the CWA, Congress never intended this result, which has prevented, or added significantly to the costs of, useful land development in areas where local authorities have considered it to be permissible.  

On June 19, 2006, the Supreme Court split 4-1-4 in the case, failing to draw a bright line limiting the Corps’ authority.  Four justices—Scalia, Thomas, Roberts, and Alito—concurred in the plurality opinion reversing the Sixth Circuit. Agreeing with NELF, these justices defined “navigable waters” to include only relatively permanent, standing, or flowing bodies of water, and their contiguous wetlands. Justice Kennedy joined in the judgment remanding the case in a separate (and, thereby, controlling) opinion. He found that the test for “navigable waters” is whether they have a “significant nexus” to “waters that are navigable in fact or that could reasonably be so made” and concluded that “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”  126 S.Ct. at 2248.  The four dissenting Justices—Breyer, Souter, Stevens, and Ginsburg—would have deferred completely to the Corps.  Justices on both sides of the issue noted that the Court’s inability to reach a majority position will require ”[l]ower courts and regulated entities. . .to feel their way on a case-by-case basis.” Id. at 2236 (Roberts, C.J., concurring); See Id. at 2264–2265 (Stevens, J., dissenting) (similar).