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Halbach v. Normandy Real Estate Partners

Appeals Court of Massachusetts, Suffolk

November 18, 2016

ERIC HALBACH & another[1]
v.
NORMANDY REAL ESTATE PARTNERS & others.[2]

          Heard: September 12, 2016.

         Practice, Civil, Summary judgment. Negligence, One owning or controlling real estate, Use of way, Duty to prevent harm, Pedestrian. Way, Public: defect.

         Civil action commenced in the Superior Court Department on February 17, 2012.

         The 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 plaintiffs.

          Matthew Kirouac for the defendants.

          Present: Kafker, C.J., Milkey, & Blake, JJ.

          BLAKE, J.

         Plaintiff 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.

         Background.

         The 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.[3] 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.

         On 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."[4] 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.

         Standard of review.

         "We 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 ...


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