Opinion
19-P-1237
08-13-2020
RAMILABEN V. PATEL, personal representative, v. MILL NO. 3, INC., & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In January 2015, Vishnukumar Kalidas Patel (decedent) was struck by a car while walking in a Fitchburg street, after coming across a stretch of sidewalk that was impassable due to snow. He died of the resulting injuries. The decedent's estate (plaintiff) brought negligence claims against several defendants, including the owners of the private property abutting the impassable sidewalk. The defendant property owners submitted a motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), which a judge granted, largely on the grounds that the defendant property owners did not owe a duty to clear a public sidewalk adjacent to their property. We affirm.
Background. "The facts are taken from the well-pleaded allegations of the . . . complaint, and for present purposes must be accepted as true." Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49, 50 (2020). On the evening of January 10, 2015, the decedent was walking along the sidewalk of Westminster Street in Fitchburg, when he encountered a stretch of sidewalk that was snow covered and impassable. Consequently, the decedent walked into the breakdown lane of Westminster Street and continued on his way. While walking in the roadway, he was hit by a car. The decedent was seriously injured, and died from those injuries five days later. His medical expenses exceeded $184,000.
The plaintiff initiated this lawsuit in June 2016, bringing claims for wrongful death under G. L. c. 229, § 2, and for "conscious pain and suffering" against the defendant property owners, whose property abutted the stretch of sidewalk at issue. It is undisputed that the sidewalk is a public way owned by the city of Fitchburg, not by the defendant property owners. The complaint nevertheless alleges that the decedent was forced to walk in the street "as a result of the negligence and carelessness of the defendant[s] . . . in failing to maintain the said sidewalk premises from being snow covered and impassable." As noted, the motion judge granted the defendant property owners' rule 12 motion. The plaintiff appeals.
The complaint named multiple other parties as defendants, including the driver of the car that hit the decedent and the city of Fitchburg. The plaintiff settled with these other defendants and stipulated to discharge them from liability. Final judgment accordingly entered for the defendants-appellees in 2019.
Discussion. The gist of the plaintiff's argument is that the complaint properly alleged negligence claims against the defendant property owners, because (1) they owed a duty to refrain from causing dangerous conditions on public sidewalks abutting their property and (2) they breached that duty by failing to prevent the accumulation of snow on the sidewalk. These allegations do not state a claim under our common law.
In reviewing an order on a motion to dismiss, we accept the allegations as true and draw all reasonable inferences in the plaintiff's favor. See Kelleher, 98 Mass. App. Ct. at 51. To survive a motion to dismiss, the factual allegations must "plausibly suggest[] . . . an entitlement to relief" (quotation and citation omitted). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). "While 'detailed factual allegations' are not necessary, to be sufficient a complaint must nevertheless provide 'more than labels and conclusions.'" Kelleher, supra, quoting Iannacchino, supra.
Whether the complaint properly alleges negligence turns on the duties owed by defendants, as "owner[s] of land abutting a sidewalk or other public way." Halbach v. Normandy Real Estate Partners, 90 Mass. App. Ct. 669, 671 (2016). The case law is clear that private property owners have no common law duty to repair or to "keep . . . in a . . . safe condition" abutting public sidewalks. Id. Our cases have applied this principle, in particular, in holding that property owners have no duty to maintain an abutting sidewalk free of snow and ice. See Papadopoulos v. Target Corp., 457 Mass. 368, 375 n.11 (2010), and cases cited; Gamere v. 236 Commonwealth Ave. Condominium Ass'n, 19 Mass. App. Ct. 359, 362 (1985). Rather, the duties of property owners with respect to abutting public sidewalks are limited to "refraining from creating an unsafe condition on the public way" (emphasis added). Halbach, supra.
The complaint does not state a negligence claim, because it does not allege that the defendant property owners created or caused the unsafe condition of the sidewalk. As noted, the allegations that appear on the face of the complaint state only that the defendant property owners were "negligent" and "careless" in "failing to maintain" the sidewalk. But a failure to clear a sidewalk does not amount to "creating" or "contributing to" an unsafe condition. See Halbach, 90 Mass. App. Ct. at 674 (no duty "to repair or warn of" uneven pavement on abutting sidewalk, where property owners "did not create or contribute to" condition). Instead, Papadopoulos and Gamere clearly state that property owners have no duty to keep abutting public sidewalks clear of snow.
At the hearing on the motion to dismiss, the plaintiff's counsel stated that the defendant property owners "negligently removed" snow on the "border" of their premises and "push[ed] snow" onto the sidewalk, thereby creating the impassable conditions that led the decedent to enter the roadway. The plaintiff made similar arguments to this court on appeal. The complaint itself, however, does not make the allegation that the defendant property owners created or caused the sidewalk condition of which the plaintiff complains. The motion judge made this same point during the hearing in the Superior Court, noting the absence of an allegation that the defendant property owners created the condition. The plaintiff did not seek to amend the complaint to add such an allegation. We are left to "rest solely on the allegations in the pleadings." Coghlin Elec. Contrs., Inc. v. Gilbane Bldg. Co., 472 Mass. 549, 552 n.5 (2015).
The plaintiff gets no aid from its citation to Lindor v. McDonalds Restaurants of Mass., Inc., 80 Mass. App. Ct. 909 (2011). That case involved a plaintiff who fell when stepping from her car onto an icy sidewalk abutting a McDonald's restaurant, and who sued the restaurant for negligence. Id. at 911. This court vacated the dismissal of the lawsuit on summary judgment. In contrast to the instant case, however, the accident in Lindor apparently occurred on private property. Our opinion did not apply, or even cite, the law regarding an abutting property owner's duty as to a public sidewalk. See generally id.,
We note that the complaint does not allege that the defendant property owners had an obligation under a municipal ordinance to clear the abutting sidewalk of snow and ice, as with the ordinance discussed in Gamere, 19 Mass. App. Ct. at 361. In fact, the complaint avers that it was the city of Fitchburg that had such an obligation, pursuant to a city ordinance that was not attached to the complaint.
In light of our conclusion, we do not reach the issue of proximate cause.
Judgment affirmed.
By the Court (Neyman, Englander & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 13, 2020.