Heard: September 12, 2016.
Civil, Summary judgment. Negligence, One owning
or controlling real estate, Use of way, Duty to prevent harm,
Pedestrian. Way, Public: defect.
action commenced in the Superior Court Department on
February 17, 2012.
case was heard by Robert L. Ullmann, J., on a motion
for summary judgment.
Michael B. Bogdanow (John J. Carroll, Jr., with him) for the
Matthew Kirouac for the defendants.
Present: Kafker, C.J., Milkey, & Blake, JJ.
Eric Halbach (Halbach) suffered serious injuries when he fell
as a result of uneven pavement on a public sidewalk adjacent
to a commercial building owned by defendant 100 & 200
Clarendon Street, LLC (Clarendon), and operated, leased, and
maintained by one or more of the remaining defendants
(collectively, Normandy). Halbach and his wife, Kathleen
Halbach, subsequently filed a complaint alleging that the
defendants had a duty to either repair the sidewalk or warn
pedestrians and the city of Boston (city) of the hazard.
Concluding that no such duty exists, a judge of the Superior
Court allowed the defendants' motion for summary
judgment. We agree, and affirm.
following undisputed facts are taken from the summary
judgment record. On June 4, 2009, Halbach was walking on
Clarendon Street in the city, near the John Hancock garage
(garage). He tripped and fell on uneven pavement on a part of
the sidewalk directly adjacent to the garage, sustaining
significant injuries as a result. The sidewalk where Halbach
fell is owned by the city. At the time of the fall, the
commercial property adjacent to the sidewalk was owned by
Clarendon and maintained by Normandy. After the incident,
Normandy hired a company to grind down the uneven payment at
a cost of $798.
February 17, 2012, the plaintiffs filed a complaint in the
Superior Court, which was amended on October 4, 2013. The
amended complaint alleges that the defendants were negligent
in their "ownership, control, maintenance and/or
inspection" of the sidewalk adjacent to the garage by
their "failure to ensure a safe pedestrian walkway"
and their "failure to keep the area of the walkway free
from defects and conditions rendering it
unsafe." The defendants moved for summary
judgment, contending that there were no genuine issues of
material fact and that they were entitled to summary judgment
as a matter of law. After a hearing, the judge allowed the
motion for summary judgment, concluding that the defendants
owed no legal duty to the plaintiffs and declining to create
what the judge described as "an entirely new duty."
This appeal followed.
review a grant of summary judgment de novo to determine
'whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have
been established and the moving party is entitled to a
judgment as a matter of law.'" Juliano v.
Simpson, 461 Mass. 527, 529-530 (2012), quoting from
Augat, Inc. v. Liberty Mut. Ins. Co., 410
Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as amended,
436 Mass. 1404 (2002). "The moving party bears the
burden of affirmatively demonstrating the absence of a
triable issue." Lev v. Beverly Enterprises-Mass.,
Inc., 457 Mass. 234, 237 (2010). "Conclusory
statements, general denials, and factual allegations not
based on personal knowledge [are] insufficient ...