Rainka v. Kon Shing

2000 Mass. App. Div. 186, 2000 Mass. App. Div. LEXIS 71
CourtMassachusetts District Court, Appellate Division
DecidedJune 23, 2000
StatusPublished
Cited by3 cases

This text of 2000 Mass. App. Div. 186 (Rainka v. Kon Shing) 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
Rainka v. Kon Shing, 2000 Mass. App. Div. 186, 2000 Mass. App. Div. LEXIS 71 (Mass. Ct. App. 2000).

Opinion

Ripps, J.

This matter came on for hearing October 20,1999 before the Western Appellate Division sitting at the East Brookfield District Court on an Expedited Appeal (Dist./Mun. Cts. R. A. D. A., Rule 8A) of the allowance of the defendants Kon Shing Chan and Lynn Chan’s Motion for Summary Judgment on January 12, 1999 and the allowance of defendants Loi Chu and Virginia Leung’s Motion for Summary Judgment on March 12, 1999. Rule 8A(a) (4) requires the filing of “a summary of the undisputed facts and so much of the evidence, including copies of pleadings and other documents, as may be necessary to decide the questions of [187]*187law presented.” The plaintiff did not provide the court with a copy of all the materials, in particular, the plaintiffs answers to interrogatories propounded by Kon Shing Chan and Loi Chu, which were presented to the trial judge and attached to their Motions for Summary Judgment and upon which the judge based his decision.2 Herein, there was an objection raised at oral argument by counsel for defendant Leung only after the omission was alluded to by the court. We find this objection insufficient, and instead choose to reach this matter on the merits, as procedural dismissal would neither preclude further appeal to this division, nor expedite decision.

Based upon the materials presented, on October 1, 1995, the defendants Virginia Leung and Loi Chan held a tag sale at a house in Ware owned by relatives Kon Shing Chan and Lynn Chan, who were not present at the time. According to the key interrogatory at issue, the plaintiff went to the tag sale and “tripped over cardboard boxed (sic) which were spread out over the- driveway at the premises. ...” See plaintiff-appellant’s Exhibit B, defendant Loi Chu’s Memorandum in Support of Summary Judgment para. 4. The plaintiff-appellant cites at page 2 of her Brief and in the FACTS in the Expedited Appeal that “Said box was acting as a ‘carped over the asphalt.” Because we are unable to read the complete answer to the interrogatory, we cannot determine where the word “carpet” came from.

The court, Loconto, J., allowed Kon Shing Chan’s and Lynn Chan’s Motion for Summary Judgment ruling:

Although the homeowners owed a duty to maintain the premises in a reasonable safe condition and to warn guests of any unreasonable dangers of which they were aware or should have been aware, I rule that whatever danger was created by the placing of cardboard boxes on the driveway during the tag sale, ought to have been so obvious to the ordinary person that the defendants, in the exercise of reasonable care, were not required to warn their guests of that danger. Polak v. Whitney, 31 Mass. App. Ct. 349 (1985).

The judge subsequently allowed Loi Chu and Virginia Leung’s Motion for Summary Judgment for the same reason.

Summary Judgment

The plaintiff first argues that summary judgment should rarely be allowed in negligence cases and particularly not in “open and obvious” cases. The general principle is that summary judgment is to be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Dist./Mun. Cts. R. Civ. P., Rule 56(c). Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating both the absence of a triable issue and its entitlement to a judgment in its favor. Wright v. Sabatino, 1995 Mass. App. Div. 48, citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). All inferences arising from facts contained in the affidavits or other Rule 56 materials are to be viewed in the light most favorable to the party opposing the motion. Wright v. Sabatino, supra, citing Hub Associates, Inc. v. Goode, 357 Mass. 449, 451 (1970); Madden v. Estin, 28 Mass. App. Ct. 392, 394 (1990).

Summary judgment is rarely granted in negligence actions, Wright v. Sabatino, supra, citing Inferrera v. Sudbury, 31 Mass. App. Ct. 96, 102-103 (1991); Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984), “because of the jury’s ‘unique [188]*188competence in applying the reasonable [person] standard to a given fact situation.’” Lauzier v. Stop & Shop Companies, Inc., 1993 Mass. App. Div. 74, quoting Foley v. Matulewicz, supra at 1005.

A court should not grant a party’s motion for summary judgment merely because the facts appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial. Lauzier v. Stop & Shop Companies, Inc., supra, citing Attorney General v. Bailey, 386 Mass. 367, 370, cert. denied, 459 U.S. 970 (1982). But, there are situations where it can be said, as matter of law, that a cause is remote rather than proximate. Stamas v. Fanning, 345 Mass. 73, 76 (1962). Thus, when all the facts are established and there can be no reasonable difference as to the effect of them, causation becomes a question of law. Id.

'Negligence is the failure to exercise that degree of care which a reasonable person would exercise in the circumstances.” Morgan v. Lalumiere, 22 Mass. App. Ct. 262, 267 (1986). But “negligence is without legal consequence unless it is a contributing cause of the injury.” Stamas v. Fanning, supra at 75, quoting Baggs v. Hirschfield, 293 Mass. 1, 3 (1935). And a contributing cause must be a proximate, not a remote cause. ‘The question, therefore, narrows down to whether it can be said, as matter of law, that the conduct of the defendant was not the proximate cause of the accident.” Stamas v. Fanning, supra at 75.

“While the inherently factual issues in negligence cases often render summary judgment inappropriate, a defendant’s Rule 56 motion may be properly allowed when the ‘plaintiff fails to provide evidence creating a genuine issue for trial,’ McNamara v. Massachusetts Port Auth., 30 Mass. App. Ct. 716, 718 n.3 (1991), and when the evidence which is brought forward, ‘considered with an indulgence in the plaintiff’s favor,’ would not permit a finding of negligence as a matter of law. Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 37 (1985). See also Roderick v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994).” Hall v. Waltham Post No. 156, 1998 Mass. App. Div. 276.

Duty of Landowner

Whether a defendant has a duty of care to the plaintiff in the circumstances is a question of law for the court, to be determined by reference to existing social values and customs and appropriate social policy. O’Sullivan v. Shaw, 431 Mass. 201, 203 (2000),3 citing Davis v. Westwood Group, 420 Mass. 739, 743 (1995), citing Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989). ‘The law imposes on a property owner ‘a duty to maintain his property in a reasonably safe condition in view of ail the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.’” Barry v. Beverly Enterprises-Massachusetts, Inc., 418 Mass. 590, 592-593 (1994), quoting Toubiana v.Priestly, 402 Mass. 84, 88 (1988), Mounsey v.Ellard, 363 Mass. 693, 708 (1973).

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Bluebook (online)
2000 Mass. App. Div. 186, 2000 Mass. App. Div. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rainka-v-kon-shing-massdistctapp-2000.