We first address background principles and then turn to the propriety of the judge's specific course of action. The owner endeavors to rely upon the concurring opinion to Barrasso v. Hillview West Condominium Trust, 74 Mass. App. Ct. 135, 140 (2009) (Kantrowitz, J., concurring), which suggested that, had the defendants in that case raised the open and obvious danger doctrine, it would have been relevant to the defendants' duty to remedy (or refrain from creating) the snow bank on which the plaintiff fell. However, because the defendants in Barrasso never raised such an argument, the issue, and the significance of prior case law such as Frost v. McCarthy, supra, was not addressed or decided.
For a duty to arise, the property owner's actions must have changed the character of the accumulated snow and ice. See Barrasso v. Hillview West Condominium Trust, 74 Mass.App.Ct. 135 (2009) (where landscaper's actions in plowing the snow had created a dense, waisthigh snow bank around the condominium's dumpster, and plaintiff fell and was injured while trying to dispose of garbage, there was a genuine issue of fact whether the accumulation was "unnatural"). Regardless of the nature of the accumulation, a property owner has no duty to protect lawful visitors from dangers that are "open and obvious."
Instead, the judge looks at the record to determine whether there is any genuine issue of material fact and, if not, whether the evidence, viewed in the light most favorable to the nonmoving party, . . . shows that the moving party is entitled to judgment as a matter of law. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137 (2009).' Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248-249 (2010). Our review is de novo.
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).
See id. at 827-828. See also Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137-138 (2009) ( Barrasso). While the shovelling of snow inevitably alters any natural accumulation of snow, the uncertain distinction between a natural and unnatural accumulation of snow has led the Appeals Court to conclude that all snow shovelled into a snowbank does not thereby become an unnatural accumulation, but it can become so in certain circumstances.
Analysis. Viewing the evidence in the summary judgment record and the reasonable inferences that may be drawn therefrom in the light most favorable to the nonmoving party, here National Lumber, summary judgment is appropriate only when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137 (2009). Our review of the record is de novo. Ibid.
Ultimately, McDonald's moved for summary judgment, arguing that the ice involved in Lindor's fall had accumulated naturally, and that, under well-established Massachusetts law, it was not liable for accidents occurring on accumulations of that type. See, e.g., Barrasso v. Hillview W. Condominium Trust, 74 Mass.App.Ct. 135, 137–139, 904 N.E.2d 778 (2009). The plaintiff filed no opposition, and a judge of the Superior Court allowed McDonald's motion in a marginal notation dated July
Instead, the judge looks at the record to determine whether there is any genuine issue of material fact and, if not, whether the evidence, viewed in the light most favorable to the nonmoving party, shows that the moving party is entitled to judgment as a matter of law. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002); Barrasso v. Hillview W. Condominium Trust, 74 Mass. App. Ct. 135, 137 (2009). In a case like this one where both parties have moved for summary judgment, the evidence is viewed in the light most favorable to the party against whom judgment is to enter.
The Appeals Court has consistently applied the above principles in subsequent cases. See, e.g., Lanza v. EQR Lincoln Lawrence, LLC, 69 Mass. App.Ct. 206, 208 (2007), Quinn v. Morganelli, 73 Mass. App.Ct. 50, 52 (2008) and Barrasso v. Hillview West Condominium Trust, 74 Mass. App.Ct. 135, 140 (2009). Even in the daylight, to any reasonable person the Beacon Yards was an inherently forbidding place.