Opinion
10-P-1344
08-09-2011
VIRGINIA LAY & another v. JORDAN'S FURNITURE, INC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff, Virginia Lay (Virginia), tripped and fell, injuring herself, when she attempted to step onto a curb outside the defendant's store on August 31, 2005. She and her husband, Kenneth Lay, filed a complaint in August, 2008, alleging that the defendant was negligent because the curb was unreasonably high and, thus, dangerous. The defendant filed a motion for summary judgment in January, 2010, claiming that there was no evidence that it violated a duty of care and, in the alternative, that the height of the curb was 'open and obvious.' The defendant's motion was allowed and we affirm.
Because we affirm the allowance of the defendant's motion for summary judgment on grounds that the plaintiffs failed to offer any evidence that the height of the curb constituted an inherently dangerous condition, we need not address the judge's alternative ground, that the height of the curb was an 'open and obvious' condition, about which the defendant had no duty to warn visitors. See LeBlanc v. Logan Hilton Joint Venture, 78 Mass. App. Ct. 699, 707 (2011) ('[T]he reviewing court may affirm summary judgment upon any visible ground in the record, even one different from the rationale of the motion judge'), and cases cited.
We review the allowance of the defendant's motion for summary judgment de novo, viewing the evidence in the light most favorable to the plaintiff and drawing all reasonable inferences in her favor. Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137 (2009). Summary judgment is proper where there is no genuine issue of material fact and the movant, here the defendant, is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
Although Virginia is correct that summary judgment is generally disfavored in an action for negligence, Kelly v. Brigham & Women's Hosp., 51 Mass. App. Ct. 297, 300 (2001), in this instance the defendant sufficiently demonstrated that Virginia lacked any reasonable expectation of proving that the defendant committed a breach of the duty of reasonable care. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Roderick v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994).
'Whether a defendant has a duty of care to the plaintiff in the circumstances is a question of law for the court . . . .' O'Sullivan v. Shaw, 431 Mass. 201, 203 (2000). Here, the defendant did not dispute that it bore a duty to 'maintain[ ] [its] property in a reasonably safe condition in view of all the circumstances . . . .' Id. at 204, quoting from Mounsey v. Ellard, 363 Mass. 693, 708 (1973). However, the record contains no evidence suggesting any breach of that duty of reasonable care on the part of the defendant. Virginia's only allegation of negligence is that the curb that she tripped on was eight or nine inches tall and that it should have been six inches tall. The plaintiffs demonstrated no applicable industry standard, building code, or other regulation that would require any particular curb height in Massachusetts. Nor did the plaintiffs offer any expert testimony on the significance of the curb height, or on whether the particular curb posed a danger to the public. The only expert testimony offered was an affidavit from the defendant's expert, which the judge was free to consider in determining whether there was failure of proof of an essential element of the plaintiffs' case.
The plaintiffs also argue that the judge erred in denying their motion to strike the expert's affidavit, as it was based on an inspection of the premises four years after the incident. We see no error, as the expert's affidavit assumed the curb height was eight or nine inches, as the plaintiff alleged, and nevertheless concluded that the curb height did not constitute negligence on the defendant's part.
From the defense expert's affidavit, it is clear that the store entrance did not violate the State building code, the regulations of the Architectural Access Board, or the requirements of the Americans with Disabilities Act. In fact, the curb height in the area of the fall is not subject to any building code or regulation. In addition, the area where Virginia fell was outside of the store's exit discharge ramp and was beyond the path of egress required by State and Federal law. Finally, based on his 'training, knowledge, education, and experience as a registered architect in seven states, including the Commonwealth of Massachusetts,' the expert opined that 'curb heights in parking lots often vary, due to differing drainage and slope requirements for sidewalks and paved parking surfaces[;] [a]s a result, a curb height of eight or nine inches is not unusual in the industry or excessive.'
We affirm the allowance of the motion for summary judgement as the plaintiffs have provided no specific facts showing a genuine issue for trial on the issue of the defendant's negligence. See Anderson v. Peter Pan Bus Lines, Inc., 56 Mass. App. Ct. 919, 921 (2002) ('The mere happening of an accident is not proof of negligence').
The plaintiffs argue that the judge should have considered evidence that the defendant contracted with T&K Asphalt Services days before the incident to make certain parking lot repairs, including installing some asphalt; the plaintiffs allege this work added height to the asphalt, thereby lowering the height of the curb. RA 153-165. However, no evidence was offered, by deposition or expert testimony, as to the purpose or effect of that work or the precise location where it was performed. On this record, we cannot speculate as to its relevance.
Judgment affirmed.
By the Court (Wolohojian, Milkey & Hanlon, JJ.),