Opinion
14-P-427
06-10-2015
MARILYN THURSTON v. CITY OF WALTHAM.
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 defendant, city of Waltham (city), appeals from a judgment of the Superior Court finding it liable for negligence contributing to injuries suffered by the plaintiff and awarding damages to the plaintiff. We affirm.
As a threshold matter, we agree with the city that its failure to raise immunity until after the jury returned its verdict did not operate to waive the defense. See Vining v. Commonwealth, 63 Mass. App. Ct. 690, 696 (2005). However, the city's reliance on immunity is ultimately unavailing because even if we assume, favorably to the city, that its decision not to modify the library steps incident to renovations performed in 1995 constituted a discretionary function within the meaning of G. L. c. 258, § 10(b), its immunity under that section would extend only to its failure to remedy a dangerous condition, and not to its failure to warn visitors of the presence of the condition. In other words, its immunity under the discretionary function exception extends only to its duty of care and not to its duty to warn. In the present case, the case was submitted to the jury under both theories (duty of care and duty to warn), with a general verdict slip, and the evidence is sufficient to support liability on the duty to warn.
As to the duty to warn, we also reject the city's argument that it was relieved of the duty to warn because the danger was open and obvious. The question whether a danger is open and obvious is ordinarily one of fact for the jury. Here, the plaintiff's expert testified that the depth of the top step was thirteen inches, the width of the door was thirty-six inches, and that
"[a] person departing the library, they push the door open, but you have to reach out 36 inches. And the natural inclination is to take a step. . . . A person who took that step could be described as a term we use as stepping into space, because they're stepping where they anticipate their foot is going to land, but there's nothing there and they fall."The city and its building inspector were aware of the size of the step and the door and of the fact that, under current code requirements, it would have required a forty-four inch landing. However, as the city itself has observed, despite the danger, the library had been visited by many other patrons for many years without a similar accident. Based on the evidence before it, the jury could conclude that the danger stemming from the small size of the step, in combination with the large size of the door, was not open and obvious, so that the city had a duty to warn.
We reject the city's contention that the trial judge abused his considerable discretion in allowing the plaintiff's expert to offer his opinion that the configuration of the step posed a danger. See Commonwealth v. Woods, 419 Mass. 366, 374-375 (1995).
We also note that before the case was submitted to the jury the city indicated that it was content with the proposed special questions to the jury, which did not include a separate question as to whether the step constituted an open and obvious danger.
Finally, we discern no error in the judge's instruction to the jury advising that the jurors could consider the fact that the library steps do not conform to currently applicable building code requirements as some evidence that the steps pose a danger. A purpose of building code requirements, among other things, is to provide design parameters for safe conditions. Particularly in that part of the building code implicated here, concerning the size and configuration of steps and landings, an evident purpose of the code is to reduce the risk of injury caused by a dangerously small landing area. That the library building is not required to conform to current code requirements, by reason of grandfathering protection, does not derogate from the fact that current building code requirements are as they are for the purpose of increasing safety and reducing danger. See Perry v. Medeiros, 369 Mass. 836, 841 (1976). See also Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 138 (2006) ("evidence of custom or practice . . . may be considered in determining whether conduct was negligent"). Cf. Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 793 (1996). The judge's instruction did not suggest that the library was in violation of the building code, or that its nonconformity with the building code established conclusively that the step presented a danger; instead, he simply allowed the jury to consider the building code (and the fact that the step was at variance with it) as some evidence of a dangerous condition.
Indeed, the judge made clear that the city was not required to comply with the current building code requirements.
Judgment affirmed.
By the Court (Green, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 10, 2015.