Opinion
15-P-805
05-05-2016
NICOLE M. FLEMING v. A PLUS AUTO BODY, INC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Nicole M. Fleming, brought this action against the defendant, A Plus Auto Body, Inc. (A Plus or defendant), alleging that A Plus's negligence caused her injury when she slipped and fell on ice near A Plus's business. The defendant's motion for summary judgment was allowed and the plaintiff appeals. We reverse.
Background. The following material facts are undisputed. On February 2, 2013, the plaintiff parked her rental vehicle on Walnut Street en route to retrieve her own vehicle from A Plus. As the plaintiff exited the rental car on Walnut Street, a public way adjacent to and downhill from A Plus, she slipped and fell on a patch of ice, breaking her leg.
The plaintiff claims that she "was lawfully on the premises owned, managed, leased, maintained and/or controlled by the defendant" and "while lawfully on the premises . . . [she] was caused to be seriously injured by the negligent condition created by the defendant." At the close of discovery, A Plus moved for summary judgment on the grounds that it did not own or control Walnut Street, a public way, and that there was no admissible evidence that it created the buildup of ice on Walnut Street.
Discussion. We review "the allowance of a motion for summary judgment de novo and consider[] 'the record and the legal principles involved without deference to the' reasoning of the motion judge." Bardige v. Performance Specialists, Inc., 74 Mass. App. Ct. 99, 101-102 (2009) (citations omitted). Summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission under [Mass.R.Civ.P. 36, 365 Mass. 795 (1974)], together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). As the moving party, A Plus is entitled to summary judgment only if it "demonstrate[d], by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that [the plaintiff, who has the burden of proof at trial,] ha[d] no reasonable expectation of proving an essential element of [her] case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
To prevail on her negligence claim, the plaintiff must prove that (1) the defendant owed her a duty of reasonable care, (2) the defendant breached that duty, (3) damage resulted, and (4) there was a causal relation between the breach of the duty and the damage. Jupin v. Kask, 447 Mass. 141, 146 (2006). The plaintiff conceded that there was no evidence that the accident occurred on A Plus's property. She contends however, that A Plus negligently caused a runoff of water from its business that resulted in the dangerous condition.
Among the evidence the plaintiff proffered in support of her argument were the unsworn statements of Dorothy Anderson, her sister, and Dominequica Anderson, her niece. In both statements the witnesses described the condition of Walnut Street on the day of the incident and reported to have observed a trail of black ice that originated at the defendant's business and flowed in the direction of the location of the accident. However, these statements were not "in affidavit form, sworn to or signed under the pains and penalties of perjury, so as to comply with Mass.R.Civ.P. 56." Bardige, supra at 103. Consequently, the motion judge disregarded them. He did not abuse his discretion in doing so. See ibid. See also Kourouvacilis, supra at 710-711 (judge properly refused to consider statement not in affidavit form).
However, there was additional evidence as to causation. When deposed, the plaintiff testified that she observed that the patch of ice on which she slipped was five to six inches wide and "came all the way down" from the corner, referring to the area where the defendant's business was located. She had observed the defendant's employees using a hose to wash cars in front of the business in the past over twenty-five times, but could not recall exactly when. There was less than one inch of precipitation in the thirty days preceding the accident and the temperature rose to sixty degrees on the two days immediately before the plaintiff's fall. A reasonable inference could be drawn from this evidence that the ice upon which the plaintiff slipped was not caused by natural precipitation. The plaintiff also offered an expert opinion that the configuration of the exit at A Plus and the slope of the streets would cause water to flow from A Plus in the direction of that portion of Walnut Street where the accident occurred. Mindful that we must view this circumstantial evidence in the light most favorable to the plaintiff, Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), and that the question of negligence is usually one of fact for the jury, Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983), we conclude that the summary judgment record creates a genuine issue of material fact as to causation.
Judgment reversed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 5, 2016.