Bradstreet v. A.R. Belli, Inc.

1991 Mass. App. Div. 199, 1991 Mass. App. Div. LEXIS 96
CourtMassachusetts District Court, Appellate Division
DecidedDecember 4, 1991
StatusPublished
Cited by1 cases

This text of 1991 Mass. App. Div. 199 (Bradstreet v. A.R. Belli, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradstreet v. A.R. Belli, Inc., 1991 Mass. App. Div. 199, 1991 Mass. App. Div. LEXIS 96 (Mass. Ct. App. 1991).

Opinion

Banks, J.

This is an action in tort brought by plaintiff Jeannette A Bradstreet to recover damages from AR. Belli, Inc. and the City of Revere for injuries she sustained in a fall on a public sidewalk on Broadway in Revere, Massachusetts. The plaintiffs claim against the City of Revere was severed for trial and is not before this Division.

The plaintiffs action against defendant AR. Belli, Inc. was based solely on the defendant’s execution of a contract to perform certain repair work at the site of the plaintiffs accident The plaintiff alleged that as she was walking along Broadway, she became momentarily distracted by certain brightly colored, painted markings on the sidewalk pavement which drew her attention away from an uneven section of sidewalk curbing upon which she then tripped and fell. The plaintiff’s complaint states that the defendant was negligent in permitting these confirsing markings to be made or to remain on the sidewalk and in failing to erect barriers or post warnings of dangerous sidewalk conditions.

Both parties filed DisL/Mun. Cts. R. Civ. P., Rule 56 motions for summary judgment. In defendant’s answers to plaintiffs interrogatories and in affidavits submitted in support of the defendant’s Rule 56 motion, it was averred that on February 7,1986, the defendant executed a contract with the Department of Public Worksofthe Commonwealth of Massachusetts for road and sidewalk reconstruction along a 1.4 mile stretch of Broadway and Pleasant Street in Revere which included the site of the plaintiff s fall. At the time of the plaintiffs July 16,1986 accident, however, the defendant had not yet begun work on the sidewalk in question, and neither the defendant, nor its agents or employees, was or had been in, or near, the area at that time. The defendant contends, therefore, that it was not in control of, or responsible for, the sidewalk area on the date of the plaintiffs accident

With respect to the painted sidewalk markings, the defendant averred that it merely satisfied the requirements of G.Lc. 89, §40 by issuing notice of its proposed work in the area to the state agency which administers the public utility underground damage prevention system (“Dig Safe Program”); that Dig Safe then discharged its G.Lc. 176, §40D obligation to notify all public utility companies of the defendant’s proposed [200]*200excavation work; and that utility company employees then painted various markings on the sidewalk indicating the location of underground lines to prevent inadvertent damage to the lines when the defendant began its excavation work. The defendant argues that it did not make any sidewalk markings, and that it had no control over the agents or employees of the utility companies who did paint the location markings to protect their underground facilities.

In support of her summary judgment motion, the plaintiff submitted an affidavit of counsel which recited that in “interviews” with unidentified state engineers and the Secretary of Transportation, plaintiffs counsel “heard that the defendant had control of the accident area.”1 The plaintiff also argued that, pursuant to various provisions of both the defendant’s State contract for public way reconstruction and regulatory standards governing such contract, the defendant’s execution of the contract automatically constituted an immediate assumption of all control of, and responsibility for, the public ways in question.

The trial court denied the plaintiffs Rule 56 motion, allowed the defendant’s motion and entered summary judgment for the defendant The plaintiff now claims to be aggrieved by the court’s rulings and judgment.

There was no error in the trial court’s allowance of the defendant’s Rule 56 motion. The defendant was entitled to summary judgment in its favor as the plaintiff demonstrated no connection in fact or law between her mishap and any culpable act or omission by the defendant. See,e.g., Manna v. Diebold, Inc., 337 Mass. 754, 755 (1958); Raskin v. John McCourt Co., 258 Mass. 301, 302 (1927).

It is the most elementary principle of tort law that there can be no actionable negligence in the absence of a breach of duty. Dolan v. Boston & Maine R.R., 328 Mass. 532, 535 (1952); Union Old Lowell Nat'l Bk. v. Paine, 318 Mass. 313, 324-325 (1945); Newlin v. New Eng. Tel. & Tel. Co., 316 Mass. 234, (1944); Theriault v. Pierce, 307 Mass. 532, 533 (1941). The obligation to exercise reasonable care in the maintenance of land is generally visited upon owners and occupiers. Mounsey v. Ellard, 363 Mass. 693 (1973). A duty to keep land designated as public ways in a condition reasonably safe for travelers is statutorily imposed upon state and municipal authorities. G.Lc. 84, §§1,15. See also Johnson v. Orange, 320 Mass. 336, 337 (1946); Himelfarb v. Brookline, 19 Mass. App. Ct. 980, 980-981 (1985). Builders or contractors who are engaged by owners or governmental authorities to perform repairs or other work upon land become obligated to exercise reasonable care to avoid harm to third parties only when they assume control over the area in which they are working. It is axiomatic that the duty to exercise reasonable care, and any liability in negligence for breach of such duty, are functions of control over the time, place and condition of a defective area or dangerous instrumentality. There can be no liability in negligence absent defendant’s control. See generally, Silvia v. Woodhouse, 356 Mass. 119, 123-124 (1969); Kurtigian v. Worcester, 348 Mass. 284, 285 (1964); Hopkins v. F.W. Woolworth Co., 11 Mass. App. Ct. 703, 705-706 (1981).

Based on these familiar principles, it is clear that the defendant could not be found liable in this action for the plaintiffs mishap for a number of reasons. With respect to affirmative acts or conduct, [see as to contractor’s duty, Piontek v. Joseph Perry, Inc., 342 Mass. 342, 343 (1961); Rockwell v. McGovern, 202 Mass. 6, 10 (1909)], the plaintiff has failed to identify any negligent contract work or other act performed by the defendant which could have caused her injuries. Compare, e.g., McDonough v. Whalen, 365 Mass. 506 (1974); Bulpett v. Dodge Assoc., Inc., 5 Mass. App. Ct. 593 (1977). The record is devoid of any suggestion that the defendant created the only actual sidewalk defect alleged by the plaintiff, namely, the uneven section of sidewalk curbing. Further, even if it were assumed arguendo that the sidewalk markings constituted a potential danger or hazard, it remains uncontroverted that such markings of under[201]*201ground utility lines were not made by the defendant or by anyone under the defendant’s control.

With respect to the issue of actionable omissions, there is no basis in the record for the plaintiffs contention that the defendant was negligent in failing to post warnings of alleged sidewalk defects. Again, no duty devolved upon the defendant to remedy or warn against hazards neither created by it, nor within its area of control. Valade v. Consolidated Builders Inc., 3 Mass. App. Ct. 519, 521 (1975). See also, Moore v. Worcester Insul. Co., 338 Mass. 44, 46 (1958); Cunningham v. T.A. Gillespie Co., 241 Mass. 280, 282 (1922). The plaintiff has failed to advance any facts or evidence to challenge specific, uncontroverted averments that the defendant had not commenced any repair work on this sidewalk, was not even in or near the area on the date in question and had assumed no control over the public way.

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Bluebook (online)
1991 Mass. App. Div. 199, 1991 Mass. App. Div. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradstreet-v-ar-belli-inc-massdistctapp-1991.