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Arraj v. United States

United States District Court, D. Massachusetts

March 30, 2015


Page 151

For Deborah Arraj, Plaintiff: David E. Hoyt, The Law Offices of David E. Hoyt, P.C., Worcester, MA.

For United States of America, Defendant: Jessica P. Driscoll, LEAD ATTORNEY, United States Attorney's Office MA, Boston, MA.

Page 152


Judith Gail Dein, United States Magistrate Judge.


This action arises out injuries sustained by the plaintiff, Deborah Arraj, as the result of a bicycle accident that occurred on May 24, 2012 in the Parker River Wildlife Refuge (" Refuge" ) in Newburyport, Massachusetts. The Refuge is owned and operated by the U.S. Fish and Wildlife Service. While she has no memory of the accident, it is Arraj's contention that while she was riding a bicycle down Refuge Road, she became entangled in yellow nylon rope strung between poles set in concrete buckets that were used seasonally to block off parking areas adjacent to the road, and that as a result she fell and suffered serious personal injuries. Arraj contends that the use of the nylon rope was negligent, and she has brought suit against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2675.

This matter is presently before the court on the defendant's " Motion for Summary Judgment" (Docket No. 36). The United States contends that the material facts are not in dispute and that it is entitled to summary judgment because (1) the yellow rope was an open and obvious condition, and in any event the plaintiff admitted that she saw the rope barrier; and (2) there is no evidence that the rope barrier caused Arraj's accident. This court recognizes that " summary judgment is rarely granted on the merits of a negligence action because of the jury's unique competence in applying the reasonable man standard to a given fact situation." Foley v. Matulewicz, 17 Mass.App.Ct. 1004, 1005, 459 N.E.2d 1262, 1263 (1984) (internal quotation and citation omitted). However, summary judgment is appropriate where, as here, the plaintiff has failed to put forth evidence establishing that the defendant's negligence caused her injury. See Glidden v. Maglio, 430 Mass. 694, 696-97, 722 N.E.2d 971, 974 (2000). After a careful review of all the evidence, and for the reasons detailed herein, the defendant's motion for summary judgment is ALLOWED.


In ruling on a motion for summary judgment, the facts must be viewed in the light

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most favorable to the non-moving party. See Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008). Applying this principle, the relevant facts are as follows.

On May 24, 2012, Arraj borrowed a bicycle from her sister to ride to the Refuge on Plum Island. (PF ¶ 3). Arraj checked the brakes and tires of the bicycle, and noted that they were fine, and that the bicycle was fairly new and in good condition. (PF ¶ 7). Arraj did not find anything wrong with the bicycle all that day. (Id.). Arraj was an experienced bicyclist, and rode a bicycle at least weekly for eight to nine months of the year in her home state of New Mexico. (PF ¶ 5). She had been to the Refuge some 12 times before, but she does not recall ever riding a bicycle there prior to the date of the accident. (PF ¶ 8).

May 24, 2012 was a clear and beautiful day. (DF ¶ 5). Arraj left her sister's home in Newburyport sometime before noon. (DF ¶ 4). She started off with her daughter and her daughter's husband, but they parted ways after about two miles, and Arraj continued to the Refuge by herself. (DF ¶ 6). Arraj was not wearing a helmet. (PF ¶ 7). She had a backpack, cell phone, water bottle, wallet and towel with her, but there was no rack for these items on the bicycle. (PF ¶ 7; DF ¶ 29).

After she entered the Refuge, Arraj passed the gatehouse and continued southbound onto Refuge Road. (DF ¶ 15). Refuge Road is a north/south two way road which is approximately 20 feet wide, with each travel lane being 10 feet 2 inches wide. (Drauszewski Aff. ¶ 9). It has been described as narrow, with limited sight clearances. (PF ¶ 23). Arraj rode towards the Hellcat Wildlife Observation Area, which is approximately 3.5 miles beyond the gatehouse. (DF ¶ 16). On her way, Arraj passed parking Lots 2 and 3 on her left. (See Def. Ex. 3 (Map)). Lots 2 and 3 were blocked off with rope barriers, as described more fully below. (DF ¶ ¶ 17, 20). There are no designated bicycle lanes on Refuge Road, and there are no markings to distinguish the asphalt surface of the road from the asphalt surface of the parking lot. (PF ¶ ¶ 13, 14). Past Hellcat Wildlife Observation Area the road changes from pavement to gravel, at which point Arraj turned around and headed back north on the same road. (DF ¶ 16). She passed Lot 3 (now on her right) and continued down the road towards Lot 1. (DF ¶ ¶ 20, 21; Def. Ex. 3). The accident occurred at Lot 2. (DF ¶ 21). Arraj has no memory of how the accident happened, and there are no known witnesses to the accident. (DF ¶ ¶ 22, 24).

The Rope Barriers

Since the mid-1990s, and on the day of the accident, the Refuge has blocked off access to the beach with 1/2 inch, high visibility, yellow nylon rope strung between poles set in concrete buckets, which are placed along the beach parking areas adjacent to Refuge Road. (DF ¶ 10). The rope is used seasonally to prevent beach access at four parking lots, including Lot 2 where the accident happened. (DF ¶ 11). On top of at least every other pole are signs saying " closed area" or " no parking," and they are intended to prevent people from accessing the beach during the nesting period of the Piping Plovers. (PF

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¶ 18; Drauszewski Aff. ¶ 8). Lot 2 is more than 300 feet in length, and the poles were approximately 30-35 feet apart on the date of the accident. (JF ¶ ¶ 2-3). In general, the poles in Lot 2 are set back approximately 6 feet from the northerly lane of travel. (Drauszewski Aff. ¶ 10). However, there is no evidence as to their exact location at the time of the accident.

There is evidence in the record that the yellow ropes can fade over time, that the height of the rope between the signs can vary up to two feet, that on occasion cars have driven over ropes, and that poles can get knocked over, blown over and moved. (PF ¶ ¶ 30, 20-22). However, there is no evidence in the record as to the brightness of the yellow rope color, or the height of the ropes, at the time of the accident, and it appears from photographs taken shortly after the accident that all of the poles were erect at the time of the accident except for the one which was underneath the bicycle after the plaintiff fell. (See Def. Ex. 12).[2]

Over the last three years, the Refuge received approximately 10,000 visitors per month during the summer months, when the ropes are generally installed, including an average of 595 bicyclists per month. (Drauszewski Aff. ¶ 11). Apart from the instant case, no other accidents involving the yellow ropes have been reported since they started to be used. (Drauszewski Aff. ¶ 12).

Arraj's Knowledge of the Ropes

As noted above, the rope barriers have been used at the Refuge for many years. The plaintiff testified that she had noticed the beach closures in the past when she had visited the Refuge. (DF ¶ 12). Moreover, the plaintiff testified that she noticed the yellow rope blocking off the parking lots on the date of the accident, while she was traveling southbound heading toward the Hellcat Wildlife Observation Area. As she testified:

Q. When you were traveling onto the refuge southbound, did you notice any areas where the beach was closed?
A. I noticed where the parking lot was closed.
Q. On, as you were traveling southbound, was it on your right-hand side or ...

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