Arruda v. Newport Construction Corporation

• Court: Massachusetts Appeals Court
• Decided: July 21, 2023
• Docket: AC 22-P-716
• Status: Published

Opinion

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22-P-716 Appeals Court

JOAN ARRUDA vs. NEWPORT CONSTRUCTION CORPORATION.

No. 22-P-716.

Middlesex. February 14, 2023. – July 21, 2023.

Present: Henry, Shin, & Hodgens, JJ.

Negligence, Duty to prevent harm, Causation. Way, Public: defect. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on April 23, 2018.

The case was heard by Christopher K. Barry-Smith, J., on a motion for summary judgment.

Robert I. Feinberg (Colleen M. Santora also present) for the plaintiff. Steven C. Kennedy for the defendant.

HODGENS, J. While walking into a crosswalk with her

granddaughter at dusk, the plaintiff caught her foot on a

protruding granite block, fell, and sustained injuries. This

granite block formed part of a decorative margin for the

crosswalk and should have been flush with the surrounding 2

roadway, but the defendant construction contractor caused the

margin to protrude above the roadway by one-half inch. The

defendant intended to repair the defect months later when

applying the final course of asphalt but provided no warning to

pedestrians at the time of the incident. After the plaintiff

filed a complaint alleging negligence, a Superior Court judge

allowed the defendant's motion for summary judgment and

concluded that the one-half inch defect was "too minor or

insubstantial" to support a negligence claim. We vacate the

judgment and remand for further proceedings.

Background. We summarize the facts in the light most

favorable to the plaintiff, Joan Arruda, as the party opposing

summary judgment. See FBT Everett Realty, LLC v. Massachusetts

Gaming Comm'n, 489 Mass. 702, 704 (2022). See Mass. R. Civ.

P. 56 (c), as amended, 436 Mass. 1404 (2002). Newport

Construction Corporation (Newport), the defendant construction

contractor, reconstructed four streets in Cambridge, including

Thorndike Street. Prior to September 8, 2017, Newport excavated

the existing asphalt roadway and cobblestone base of Thorndike

Street, laid a new gravel base, and covered the base with a

"binder" course of asphalt. This binder course left a one-

quarter to one-half inch difference in elevation between the

granite margin of the crosswalk and the roadway surface. A

passenger in a vehicle would "barely feel" the protrusion when 3

driving over the crosswalk and approaching the stop sign at the

intersection. Newport planned to apply in the spring a final

course of asphalt that would make the roadway surface flush with

the protruding granite margin of the crosswalk.

At about 6 P.M., on September 8, 2017, Arruda walked

through Cambridge with her granddaughter to attend a

neighborhood festival. As they diagonally crossed Thorndike

Street into the crosswalk, Arruda caught her foot on the

protruding granite margin, fell, and sustained injuries. At the

time of the incident, the granite protrusion was not highlighted

by any traffic cones, warning signs, or paint.

Arruda filed a complaint in the Superior Court and claimed

that Newport negligently maintained the roadway and walkway and

failed to provide a warning of the defect. A Superior Court

judge allowed Newport's motion for summary judgment. The judge

concluded, "In the context of resurfacing a street, that one-

half inch difference in elevation is sufficiently small that a

reasonable person -- namely, the street contractor -- would not

anticipate injury and guard against it."

Discussion. "Ordinarily, 'summary judgment is not an

appropriate means to resolve negligence cases, because usually

the question of negligence is one of fact.'" Doe v. Boston Med.

Ctr. Corp., 88 Mass. App. Ct. 289, 291 (2015), quoting Roderick

v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994). A viable 4

negligence claim consists of four elements: "[(1)] [the]

defendant owes a duty of reasonable care to the plaintiff,

[(2)] the defendant committed a breach of that duty, [(3)] the

plaintiff suffered damage, and [(4)] a causal relationship

existed between the breach of duty and the damage." Heath-

Latson v. Styller, 487 Mass. 581, 584 (2021). While the

existence of a duty is a question of law, the remaining elements

are considered "to be the special province of the jury." Jupin

v. Kask, 447 Mass. 141, 146 (2006). "[A] party moving for

summary judgment in a case in which the opposing party will have

the burden of proof at trial is entitled to summary judgment if

he demonstrates . . . that the party opposing the motion has no

reasonable expectation of proving an essential element of that

party's case." Kourouvacilis v. General Motors Corp., 410 Mass.

706, 716 (1991). We review the judge's summary judgment

decision "de novo." Kennedy v. Abramson, 100 Mass. App. Ct.

775, 777 (2022).

Newport has not demonstrated that Arruda has no reasonable

expectation of proving an essential element of her negligence

case. The record shows that Newport was a contractor in the

process of reconstructing Thorndike Street. As a matter of law,

Newport owed a duty of care to pedestrians, like Arruda, who

walked across that street and encountered the construction

defect. See Meyer v. Veolia Energy N. Am., 482 Mass. 208, 209 5

(2019) (contractor that "created a particular defect" in roadway

subject to negligence claim of injured bicyclist); Seltzer v.

Amesbury & S. Gas Co., 188 Mass. 242, 244 (1905) (liability was

based on contractor's act of "digging a pit and leaving it

insufficiently or improperly filled, thus creating an

obstruction to public travel"). Viewed in a light most

favorable to Arruda, the record also contained factual support

for the remaining elements of her negligence claim. Newport

knew about the protruding "lip" of the granite margin and

planned to eliminate it in the spring through the application of

a final course of asphalt that would make the roadway surface

flush with the granite. At the time of the incident, the

granite protrusion lacked any traffic cones, warning signs, or

paint. As Newport's construction manager put it, he believed

paint was not necessary because the protrusion was "not in a

pedestrian path of travel." Arruda and her granddaughter

diagonally crossed Thorndike Street into the crosswalk where

Arruda caught her foot on the protruding granite margin, fell,

and sustained injuries. Jurors need to sift through these facts

and weigh the evidence to decide whether Newport's conduct

amounted to a breach of its duty of care and caused the injury

to Arruda. See Regan v. John J. Amara & Sons Co., 348 Mass.

734, 737 (1965) ("jury could have found that [contractor] knew

or ought to have known of the defective condition of the street 6

and was negligent in failing to take adequate precautions");

Scholl v. New England Power Serv. Co., 340 Mass. 267, 270 (1960)

(jury question presented where contractor "fail[ed] to warn

travellers of the excavation" in city street).

Contrary to Newport's claim, the height of the defect,

standing alone, is not determinative of the negligence claim as

a matter of law. Newport contends that the half-inch protrusion

of the granite margin above the binder layer of asphalt was "too

minor or insubstantial to support a negligence claim." Rather

than focusing exclusively on the height of the protrusion, the

"necessary inquiry is whether the defect is so minor or

insubstantial that a reasonable person would not have

anticipated injury and guarded against it." Doherty v. Belmont,

396 Mass. 271, 275 (1985). This broader inquiry, under the

reasonable person standard, focuses not just on the height of

the defect but also on its origin, location, and duration.

Properly focused, the inquiry shows that Newport's application

of the binder course of asphalt to the roadway surface left the

protrusion (or "lip") of the granite margin along the edge of

the crosswalk. According to the construction manager, a final

layer of asphalt could have been applied over the binder layer

"the next day," but "the scope of the project" called for

leaving the protrusion in place for a "longer duration" until

the spring. In the interim, the protrusion lacked any warning 7

of its unfinished, defective condition at the time of Arruda's

injury. Based on the record here, a jury could conclude that

Newport was aware,1 or should have been aware, of the defect and

should have anticipated a potential injury, but "nonetheless

failed to take steps to eliminate this risk" through adequate

warnings or other remedial action. Id. Whether such a

conclusion should ultimately be drawn is a factual question

within "the special province of the jury." Jupin, 447 Mass. at

146.

Newport's creation of the protruding granite margin and

knowledge of the defect distinguish this case from those in

which liability cannot be imposed for insignificant conditions.

See Pastrick v. S.S. Kresge Co., 288 Mass. 194, 195, 197 (1934)

("no defect and no unusual danger" where "sum of the width and

height in the stairway in question gave 'an abnormally high

cadence' to the pacing of an ordinary person"); Rosenthal v.

Central Garage of Lynn, Inc., 279 Mass. 574, 575 (1932) (shiny

and smooth condition of stair treads that was "merely as the

result of wear" did not constitute defect that rendered stairs

unsafe); Douglas v. Shepard Norwell Co., 217 Mass. 127, 130

(1914) (loose carpet and gradual, slight ridge did not

The construction manager also testified that the 1

protruding granite "probably was painted" at some time, but likely wore off by the time of the incident. 8

constitute defect "which the defendant ought to have

discovered"); Ware v. Evangelical Baptist Benevolent &

Missionary Soc'y of Boston, 181 Mass. 285, 286-287 (1902) (step

from hallway into adjoining room "cannot be regarded as

defective"); Jennings v. Tompkins, 180 Mass. 302, 302-303 (1902)

("there is not a defect" from nail protruding 3/16 of inch from

step due to natural wear).

The present case is also distinguishable from cases cited

by Newport involving municipal defendants. Municipal defendants

are aided by a statute that limits liability for injuries

resulting from defects in public ways. See G. L. c. 84, § 15

(road-defect statute). That statute embodies the public policy

that municipalities "should not be liable for slight or trivial

imperfections in public ways which might be caused by weather

conditions or traffic patterns." Doherty, 396 Mass. at 275.

Newport, however, is not a municipality subject to the road-

defect statute, and the alleged defect here was caused by

Newport, not weather conditions or traffic patterns. Contrast

Galante v. Brockton, 305 Mass. 480, 481 (1940) (city not liable

for injury to pedestrian who fell due to "slight sinking and

tipping of the curb" away from the sidewalk where requirement of

"perfect alignment would bear heavily upon municipalities");

Vellante v. Watertown, 300 Mass. 207, 208 (1938) (town not

liable for injury to pedestrian who stumbled on tilting sidewalk 9

perhaps caused by "freezing and thawing of the ground" where

"actionable defect would cast an undue burden upon

municipalities").2

Newport asks us to extend the road-defect statute and

standards of limited municipal liability to its own conduct

because the burden placed on a contractor will inevitably be

passed along to a municipality through a higher contract price.

We decline to do so. The Supreme Judicial Court has limited the

reach of the road-defect statute, and cases imposing liability

under it, to "the county, city, town, or person required to

perform the public duty of maintaining the way and not to a

private corporation that causes a defect in the way, even where

the private entity has been authorized by a governmental entity

to perform a particular function causing a defect in the way."

Meyer, 482 Mass. at 218. Stated another way, the road-defect

2 Other cases cited by Newport are also inapposite. See Swenson v. Boston, 317 Mass. 295, 295-296 (1944) (city not liable for injury to pedestrian who tripped on streetcar rail protruding two inches above roadway where actionable defect would "cast an undue burden on municipalities"); Rowett v. North Adams, 288 Mass. 50, 50-51 (1934) (city not liable for injury to pedestrian who stepped in hole while crossing paved street where testimony did not describe the "area, depth, or other features of the so-called 'hole'"); Beaumier v. Heath, 282 Mass. 312, 313, 315-316 (1933) (town not liable for injury to vehicle passenger caused by hole in cobblestone road where town lacked reasonable notice of defect and opportunity to repair); Newton v. Worcester, 174 Mass. 181, 188 (1899) (city not liable for injury to pedestrian who fell on brick sidewalk where varying, smooth depressions up to two inches did not render sidewalk unsafe). 10

statute "applies only to those entities that have a public duty

to maintain the way, not to private parties causing particular

defects." Id. at 221.

Conclusion. Summary judgment is sometimes but "rarely"

warranted in negligence cases, which usually present questions

of fact for the jury. Zavras v. Capeway Rovers Motorcycle Club,

Inc., 44 Mass. App. Ct. 17, 21 (1997). This is not such a rare

case. The judgment for Newport is vacated, and the matter is

remanded to the Superior Court for further proceedings

consistent with this opinion.

So ordered.