Opinion
Civil Action 17-03691
12-17-2018
Paula S. WILBERT and Luis A. Espinoza v. VERIZON NEW ENGLAND, INC., and NStar Electric Company, d/b/a Eversource Energy
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS FOR JUDGMENT ON THE PLEADINGS
MICHAEL D. RICCIUTI, Justice Superior Court
Plaintiffs Paula S. Wilbert and Luis A. Espinoza bring this action against defendants Verizon New England, Inc. ("Verizon") and NStar Electric Company, d/b/a Eversource Energy ("Eversource"), alleging against each claims for negligence, public nuisance and loss of consortium. This matter arises from a bicycling accident which Ms. Wilbert alleges occurred along a bicycle path in Dennis, Massachusetts. She claims she was injured as the result of the placement of a "guy wire," a wire stabilizing a utility pole, which encroached upon the bicycle path. Her husband, Mr. Espinoza, alleges damages for loss of consortium. Plaintiffs contend that the defendants are responsible for the guy wire.
Plaintiffs had earlier brought claims against the Town of Dennis, which were dismissed by this Court by order dated September 27, 2018.
Presently before this Court are motions for judgment on the pleadings filed by both Verizon and Eversource.
Even though the Defendants’ motions are styled as Rule 12(c) motions, all three parties offer materials outside the pleadings in their filings. Under the rule, the Court may elect to consider these materials and treat the motions as motions for summary judgment, or exclude them and decide the motions under Rule 12(c). See Rule 12(c) ("If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56"). In this case, Verizon claims that it "does not waive, and expressly reserves, the right to file a Motion for Summary Judgment upon the completion of discovery in the litigation," Memorandum of Law, at 1 n. 1, which suggests the Court should exclude the additional materials and resolve the present motions in strict accordance with Rule 12(c). However, all three parties have had a reasonable opportunity to present all material relevant to a summary judgment motion, and as discussed below, the record shows a lack of dispute on the material facts such that judgment is appropriate as a matter of law. The Court thus elects to consider the additional materials and decide the motions for judgment on the pleadings as motions as motions for summary judgment.
In consideration of the parties’ memoranda of law and oral arguments, and for the reasons that follow, the Defendants’ motions for summary judgment are ALLOWED .
BACKGROUND
Summary judgment is appropriate when the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c); see DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and that he or she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his or her favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll. of the Holy Cross, 388 Mass. 16 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).
Beginning in the early 1960’s, utility poles were installed in the Town of Dennis ("Town"). The poles were initially authorized by a Town ordinance, an "Order for Joint Pole Relocation" dated January 30, 1962, which granted the New England Telephone and Telegraph Company, Verizon’s predecessor, and Cape & Vineyard Electric Company, evidently Eversource’s predecessor, "a joint relocation for and permission to erect and maintain poles and their respective wires and cables, together with such sustaining and protecting fixtures as said Companies may deem necessary" ("1962 Ordinance").
Eversource contended, but provided no evidence to show, that Cape & Vineyard Electric Company is its predecessor, but Plaintiffs concede the point.
Pursuant to the 1962 Ordinance, utility pole number 37C I 95 or 37C 195 (the "Utility Pole") was installed in 2004. It is jointly owned by the Defendants. When it was installed, both Defendants, themselves or through their predecessors, installed their own "guy wires" to stabilize it, which were connected to the Utility Pole and anchored to the ground. One of the guy wires spanned diagonally from the ground to the Utility Pole ("the Guy Wire"). Verizon owned that Guy Wire.
In connection with the utility poles in Dennis and elsewhere, Verizon and Eversource, through their predecessors, entered into a long-standing agreement, called the Joint Ownership Agreement ("JOA), governing their use and maintenance of the Utility Poles and the property associated with them. In 1993, and pursuant to the JOA, Eversource assumed custodianship for the utility poles in the Town. Eversource also served as the Town’s point of contract for both companies regarding all of the utility poles in the Town.
In or about 2012, the Town sought to construct, pave, and grade a bicycle path ("Bicycle Path"). Because the guy wires for the Utility Pole encroached into the area for the proposed Bicycle Path, Joseph Rodricks, then the Town’s Engineer, sent an email in January of 2012 to Eversource requesting that the Eversource and/or Verizon guy wires connected to the Utility Pole be repositioned "12 ft (minimum) ... to clear the bikepath we are constructing," and requested that Eversource send him a work request form to complete this work. On January 31, 2012, Rodricks prepared and emailed to Eversource a Work Order Application, which sought "[r]eplacement of existing guy wire on [the Utility Pole] with sidewalk guy." On February 8, 2012, Eversource emailed Rodricks advising him that Eversource had assigned a work order for the work Rodricks requested ("Work Order").
In or about June 2012, the Town paved the Bicycle Path. The Bicycle Path is a public way.
On July 6, 2012, Rodricks sent another email to Eversource, asking about the status of the work contemplated under the Work Order. Eversource moved its guy wire, but the Guy Wire, which was owned by Verizon, was not moved following this email.
As of July 21, 2017, the Utility Pole was located in a grassy area between the road and Bicycle Path. Plaintiff Wilbert alleges that on that date, she was injured while riding a bicycle along the Bicycle Path when she struck the Guy Wire, owned by Verizon, which crossed the Bicycle Path at an allegedly inadequate height.
Plaintiff served Verizon or Eversource with notice of the alleged accident in October, 2017, which was more than thirty days after Wilbert’s alleged accident.
In the Second Amended Complaint, Plaintiffs contend that Verizon was negligent in, among other things, failing to heed the Town’s request that it replace the Guy Wire. They also claimed that Eversource was liable because it jointly owned the Utility Pole with Verizon and, among other things, was responsible for taking corrective action regarding Verizon’s Guy Wire itself or for notifying Verizon of the need to do so or otherwise causing Verizon to remove or remedy the alleged danger posed by the Guy Wire.
DISCUSSION
A. Overview
The exclusive remedy for a claim of personal injury against a "person obliged by law" to repair a defect in or on a public way is G.L. c. 84, § 15. Wolf v. Boston Water & Sewer Commission, 408 Mass. 490, 492 (1990). G. L. c. 84, § 15 provides in pertinent part
If a person sustains bodily injury or damage in his property by reason of a defect or a want of repair or a want of a sufficient railing in or upon a way, and such injury or damage might have been prevented, or such defect or want of repair or want of railing might have been remedied by reasonable care and diligence on the part of the county, city, town or person by law obliged to repair the same, he may, if such county, city, town or person had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair or want of a sufficient railing, recover damages therefor from such county, city, town or person...G. L. c. 84, § 15 (emphasis added). Under G. L. c. 84, §§ 18-19, a plaintiff bringing a claim under § 15 must give written notice of the claim on the responsible entity within 30 days of the alleged accident. Doing so is a necessary precondition to filing suit, whether the plaintiff seeks to sue a governmental entity or private party under the statute. See Paddock v. Brookline, 347 Mass. 230, 231-232 (1964); Ram v. Charlton, 409 Mass. 481, 490 (1991) ("Both private parties and governmental entities are entitled to notice within thirty days when a defect in a way under their control is alleged under G. L. c. 84, § 15").
The parties do not dispute that the Defendants are "persons" within the scope of the statute. See Bartholomew v. Charter Commc’ns, Inc., 84 Mass.App.Ct. 110 at *2 (2013) (unpublished opinion) (" ‘The word ‘person’ in the phrase of the statute, ‘or person by law obliged to repair the same, ’ includes a corporation," quoting Hurlburt v. Great Barrington, 300 Mass. 524, 526 (1938)).
The parties do not dispute that the Bicycle Path constitutes a way within the meaning of G. L. c. 84, § 15. Nor do they dispute, for purposes of these motions, that the positioning of the Guy Wire was a defect, understood as "anything in the condition or state of the roadway which renders it unsafe or inconvenient for ordinary travel." Huff v. Holyoke, 386 Mass. 582, 584 (1982) (citations omitted). A defect includes obstructions across a way, such as a chain across a road (Huff, 386 Mass. at 584) or tree branches over it (Miles v. Commonwealth, 288 Mass. 243 (1934)). The Guy Wire crossed the Bicycle Path in a manner that encroached upon it, and was thus a defect under G. L. c. 84, § 15.
As this Court concluded at an earlier stage in this litigation, it is undisputed that Plaintiffs failed to give Verizon written notice of Wilbert’s alleged July 21, 2017 accident until October 5, 2017, more than a month after the 30-day notice requirement set forth in G.L. c. 84, § 18 had expired. Eversource did not receive notice until five days after Verizon’s notice. The question then is whether Verizon or Eversource are proper defendants within the scope of G.L. c. 84, § 15. If they are, Plaintiff’s claims are barred for failure to have provide timely notice.
B. Verizon
Leaving Eversource aside for the moment, the Court expressed its concern earlier during this litigation that it was unclear whether the statutes and ordinances then-relied upon by Verizon - the National Electric Safety Code, a Town ordinance granting easements to utilities, G.L. c. 84, § 15, and G.L. c. 166, §§ 21, 22 and 32 - collectively established that Verizon was required by law to maintain the guy wire because "the statutes and Dennis town ordinance relied on by Verizon do not expressly impose any duty of repair." The Court contrasted this case with two cases where the defendant’s obligation to repair defects in a way was expressly laid out in a statute or city ordinance. See, e.g., Filepp v. Boston Gas Company. 85 Mass.App.Ct. 901 (2014) (rescript opinion) (statute obligated Boston Gas, after excavation, to "put all such streets, lanes and highways in as good repair as they were in when opened"); Bartholomew, 84 Mass.App.Ct. 1104 at *1 & n. 2 (Worcester city ordinance expressly provided that "[o]ne who owns, possesses or controls any structure, excavation or conduit in, under, over, or upon a public way... shall be deemed to have entered into the following agreements with the City [of Worcester]... to maintain the public way directly above or adjacent to said structure, excavation or conduit, as the case may be, in good repair and condition"). The Court provided a window of discovery to determine whether Verizon owned the Guy Wire and, if it did, "whether Verizon had a legal duty to repair defects on the public way in Dennis." The Court did not reach Verizon’s argument that the common law imposed such a duty.
Ownership of the Guy Wire is no longer in dispute. Verizon, to its credit, promptly admitted that it owns the Guy Wire. Further, the discovery conducted by the parties established that Verizon was obligated by law to maintain it. That discovery revealed the 1962 Ordinance, which authorized Verizon and its predecessor to install "and maintain poles and their respective wires and cables, together with such sustaining and protecting fixtures as said Companies may deem necessary" (emphasis added). This language, which was not before the Court previously, is similar to that reflected in the statute in Filepp and the ordinance in Bartholomew in that it expressly imposed a duty on Verizon to maintain the Guy Wire it owned. In addition, to the extent the Plaintiff alleges that the common law also imposed this duty on Verizon, that alleged common law duty would also establish a legal obligation on Verizon to maintain the Guy Wire. See Baird v. Massachusetts Bay Transportation Authority, 32 Mass.App.Ct. 495, 487-98 (1992) (a common law duty satisfied the requirements of G.L. c. 84, § 15 that a duty be based in law).
Verizon is thus within the scope of § 15. Plaintiff Wilbert’s failure to provide timely notice on Verizon is fatal to her claim against Verizon. Plaintiff Espinoza’s claim against Verizon is meritless as a matter of law, as loss of consortium claims are outside the sweep of G.L. c. 84, § 15. See Baird, 32 Mass.App.Ct. at 499-500. Plaintiff’s Second Amended Complaint against Verizon is therefore dismissed.
C. Eversource
Plaintiffs’ theory regarding Eversource has narrowed since it filed the Second Amended Complaint. In it, Plaintiffs alleged that Eversource was directly liable to them on the same basis as Verizon or, alternatively, on the grounds that Eversource failed to alert Verizon to the Town’s concerns about the Guy Wire and/or failed to cause Verizon to remedy the alleged hazard posed by the Guy Wire. In its Opposition to Eversource’s motion, Plaintiffs abandoned the first claim, alleging that "Eversource had no obligation (whether common law or statutory) to repair the Guy Wire." Because Plaintiffs have abandoned their direct claim against Eversource, Eversource’s motion for summary judgment on this theory is allowed and the claims of both Plaintiffs on this theory are dismissed.
Because the parties agree that the Guy Wire was Verizon’s, any claim that Eversource is within the scope of § 15 because it is the successor to Cape & Islands Electric Company is irrelevant. Even accepting the Plaintiffs’ concession that Eversource is Cape & Islands’ successor, the undisputed facts show that Verizon, and not Eversource, owned the Guy Wire and thus had the legal obligation to maintain it.
Plaintiffs ground their second theory against Eversource - that Eversource failed to fulfill its duty to notify or cause Verizon to repair its Guy Wire - not on law but on Eversource’s duty under its contract with Verizon to spur Verizon to address the Town’s complaint regarding the Guy Wire. Because this claim is not based on any legal obligation imposed on Eversource to maintain the Guy Wire, it would fall outside of the scope of § 15. See Bartholomew, 84 Mass.App.Ct. 1104 at *2 n. 5, citing Ram, 409 Mass. at 489 (§ 15 is the exclusive remedy only where the defendant falls within its scope as "by law obliged to repair" the way).
As a legal matter, a plaintiff may ground a duty of care on a party’s obligations as framed in a contract with a third party. As the Supreme Judicial Court has noted:
"It is settled that a claim in tort may arise from a contractual relationship, ... and may be available to persons who are not parties to the contract....[A] defendant under a contractual obligation ‘is liable to third persons not parties to the contract who are foreseeably exposed to danger and injured as a result of its negligent failure to carry out that obligation.’" Parent v. Stone & Webster Eng’g Corp., 408 Mass. 108, 113-114 (1990) (Parent), quoting Banaghan v. Dewey, 340 Mass. 73, 80 (1959). Where a contractual relationship creates a duty of care to third parties, the duty rests in tort, not contract, and therefore a breach is committed only by the negligent performance of that duty, not by a mere contractual breach. See Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 368 (1997), quoting Abrams v. Factory Mut. Liab. Ins. Co., 298 Mass. 141, 144 (1937) ("Although the duty arises out of the contract and is measured by its terms, negligence in the manner of performing that duty as distinguished from mere failure to perform it, causing damage, is a tort").LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 328 (2012) (citations omitted, emphasis added). Under this theory, Plaintiff Wilbert’s claim is that Verizon had a statutory duty to maintain the Guy Wire, a claim which falls within the scope of § 15, but that Eversource’s duty under the JOA was to Verizon fulfilled that duty, a claim that would fall outside of § 15.
This claim is different than a claim where the plaintiff contends that he or she is a third party beneficiary of a contract, which is not alleged by Plaintiffs here. See Shamsi v. Ducharme, 91 Mass.App.Ct. 1122, as clarified on denial of reh’g (June 14, 2017), review denied, 477 Mass. 1108 (2017), and review denied sub nom. Carlson v. Ducharme, 477 Mass. 1109 (2017) (citations omitted) (plaintiffs alleging to be a third party beneficiary of a contract "must prove that they are intended, as opposed to merely incidental, beneficiaries of the agreement.... To determine whether a third party is an intended beneficiary, we look to ‘the language and circumstances of the contract’ for evidence of the contracting parties’ intent to confer a right of enforcement on the third party. In applying this test, we keep in mind that ‘contracting parties may well intend that a third party receive a benefit as a result of their contract but not intend to confer on the third party a right to enforce the contract’ ").
While legally viable, Plaintiffs point to no provision in the JOA which establishes such a duty of care on Eversource such as to advise Verizon of the Town’s concerns with the Guy Wire or to ensure Verizon took any action to address it. On the contrary, as Plaintiffs argue in their opposition to Verizon’s motion for judgment on the pleadings, the JOA places responsibility on each company to place and maintain its own guy wires. See JOA, Tab 7, "Policy for Guying J.O. Poles," §§ 3, 6; Agreement, September 1, 1975, Article 7. Nothing suggests that Eversource is required to monitor Verizon’s compliance with its statutory responsibilities.
Plaintiffs have thus failed to show that the JOA established a duty of care owned by Eversource to them. Eversource is not liable to them as a matter of law. Summary judgment is thus granted to Eversource on Plaintiff Wilbert’s secondary theory of liability.
ORDER
Treating Defendants’ motions for judgment on the pleadings as motions for summary judgment, the Defendants’ motions for summary judgment are ALLOWED .
SO ORDERED .