Opinion
1879CV00295
02-13-2019
Diana PRESTON v. Howard GREANEY et al.[1]
Only the Westlaw citation is currently available.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Francis E. Flannery, Justice of the Superior Court
This case arises from a slip and fall on an accumulation of ice and/or snow. The plaintiff, Diana Preston, brought this action against the defendants, Howard and Ellen Greaney, as the owners/occupiers of 351 Hillside Avenue, Holyoke, Massachusetts (the "premises"), alleging negligence in the failure to maintain the premises in a reasonably safe manner and keep it free from all foreseeable hazards. The defendants now move for summary judgment on the grounds that the plaintiff’s failure to provide notice within thirty (30) days pursuant to G.L.c. 84, § § 18-21, is fatal to her claim. The plaintiff counters that the defendants were not prejudiced by any delayed notice and the action goes beyond a claim under c. 84.
"By statute, a plaintiff seeking to recover for injuries sustained as a result of an accumulation of ice is required, within thirty days, to provide the defendant with written notice of the time, place and cause of said injury. G.L.c. 84, § 18. See G.L.c. 84, § 21 ... The notice requirement applies generally to all persons sought to be charged with liability for injury caused by an accumulation of ice ... and it is a prerequisite to a party bringing this cause of action ... A complaint alleging a right to damages under G.L.c. 84 must allege the giving of notice (internal citations omitted; internal quotation marks omitted)." Lewis v. Rocco Realty Tr., 94 Mass.App.Ct. 1103 (2018) (1:28), review denied, 481 Mass. 1102 (2018).
Here, the plaintiff failed to provide notice within thirty days pursuant to G.L.c. 84, § § 18 and 21, and the defendants have been prejudiced by the delay. The plaintiff’s slip and fall occurred on January 6, 2017, and the defendants did not receive notice of the alleged incident until June 19, 2017, almost six months later. See Perry v. Medeiros, 369 Mass. 836, 843 (1976) (notice received fifty-two days after injury was "fatally tardy"). The defendants have provided an affidavit from the insurance claim examiner for this case, Amy Poirier, who averred that the plaintiff’s late notice limited the ability to "investigate whether ... the allegations regarding the alleged presence of snow and/or ice were truthful and accurate." Additionally, the defendants have provided the affidavit of Howard Greaney who stated that he lost the ability to reconstruct the day in his mind. See Lewis, 94 Mass.App.Ct. 1103, *2 ("the judge could reasonably infer that witnesses present on the day of the fall may no longer be available and that even if they were, their memories may have faded ..."). Finally, the plaintiff’s argument that the negligent claim is not limited to the defendants’ failure to clear the ice and snow accumulation is unpersuasive, and the alleged facts of the complaint nonetheless required notice pursuant to G.L.c. 84, § § 18 and 21. See Lindahl v. Sullivan, 361 Mass. 863 (1972) (plaintiff’s argument that notice was not required because action was based on defendant’s negligent maintenance of broken drain pipe that caused ice accumulation and not upon defective condition consisting in part of ice was without merit).
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendants’ Motion for Summary Judgment is ALLOWED .