Paula S. WILBERT and Luis A. Espinoza
VERIZON NEW ENGLAND, INC., and NStar Electric Company, d/b/a Eversource Energy
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTSâ
MOTIONS FOR JUDGMENT ON THE PLEADINGS
MICHAEL D. RICCIUTI, Justice Superior Court
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.
before this Court are motions for judgment on the pleadings
filed by both Verizon and Eversource.
though the Defendantsâ 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.
consideration of the partiesâ memoranda of law and oral
arguments, and for the reasons that follow, the Defendantsâ
motions for summary judgment are
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,
in the early 1960âs, 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, Verizonâs
predecessor, and Cape & Vineyard Electric Company, evidently
Eversourceâs 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").
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.
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 Townâs point of contract for both
companies regarding all of the utility poles in the Town.
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 Townâs
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").
about June 2012, the Town paved the Bicycle Path. The Bicycle
Path is a public way.
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.
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