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Wilbert v. Verizon New England, Inc.

Superior Court of Massachusetts, Suffolk

December 17, 2018

Paula S. WILBERT and Luis A. Espinoza
VERIZON NEW ENGLAND, INC., and NStar Electric Company, d/b/a Eversource Energy


          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.[1]

         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.


         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, [2] "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").

         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 ...

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