45 Mass. App. Ct. 715 | Mass. App. Ct. | 1998
This matter arises from the accidental death of Marcy Bergendahl, who was electrocuted when an aluminum ladder she was helping to move touched a live 8,000 volt power line owned by Massachusetts Electric Company (MEC). Plaintiff Charlotte Bergendahl, administratrix of her daughter’s estate, brought suit against MEC, seeking recovery grounded on the contention that MEC’s negligence with respect to the power line caused Marcy’s death. A Superior Court judge dismissed the complaint on MEC’s motion for summary judgment.
At the curb in front of the house, between sixteen and eighteen feet from the porch, were two utility poles carrying telephone, cable television, and electric wires. The telephone wires were approximately twenty feet from the ground; the cable television wires were approximately twenty-one and one-half feet high; and two sets of electric wires owned by MEC were approximately twenty-five and thirty feet, respectively, above the ground, at the top of the poles. The topmost electric wires were not insulated. The vertical and horizontal locations of the wires and their uninsulated condition were in compliance with the applicable requirements of the National Electric Safety Code. No trees or other objects masked or obstructed the overhead wires, which were in plain view from the Bergendahl house and from the adjacent public sidewalk underneath the wires, where the foot of the ladder was positioned at the time of the accident.
Marcy was touching either the ladder or her brother, who was holding the ladder, when it came into contact with the topmost electric wires. All four persons were thrown to the ground, but only Marcy was injured severely enough to require hospitalization. She died five days after the incident as a result of her electrocution.
Following completion of discovery by both parties, MEC moved for summary judgment. It contended, on the basis of the undisputed facts set forth above, that Charlotte had failed to present any evidence to show MEC was negligent or that any negligent act or omission on its part had proximately caused Marcy’s death. MEC particularly argued that, as matter of law, it had no duty to insulate the wires involved in the accident or to warn Marcy or the others who were moving the ladder. MEC stressed the fact of its full compliance with applicable code
The plaintiff opposed MEC’s motion by asserting the existence of “a genuine issue of material fact that must be determined by a jury: [namely,] whether or not Marcy . . . was one to whom . . . [MEC] owed a duty to insulate its wires.” She also argued that in determining such “fact in accordance with Massachusetts case law the jury must weigh whether or not she was a member of ‘the general public.’ ” The only evidence presented in support of the opposition was Karl Bergendahl’s affidavit. It merely averred that Marcy was not actually moving the ladder at the time of the accident but only standing beside him, joking with him while rubbing his bald head. The legal argument for the plaintiffs opposition centered on the claim that, under Massachusetts law, electric companies had a duty to members of the general public to insulate their wires; that failure to insulate would warrant a finding of negligence in favor of a member of the general public who could reasonably be expected to come in contact with those wires; and that it was a jury question whether Marcy was a member of the general public.
At the hearing on MEC’s summary judgment motion, the court’s questions reflected a particular concern with the issue whether any duty to insulate existed, particularly in light of MEC’s compliance with code requirements. The plaintiff
Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as matter of law. Community Natl. Bank v. Dawes, 369 Mass. 550, 553 (1976). Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). Mass.R. Civ.P. 56(c), 365 Mass. 824 (1974). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue “and [further,] that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not have the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). Accord Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact in order to defeat [the] motion.” Pederson, 404 Mass. at 17. “[W]hen a motion for summary judgment is made and properly supported, the non-moving party may not simply rest on pleadings, ‘but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.’ ” Correllas v. Viveiros, 410 Mass. 314, 317 (1991), quoting from Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). Conflicts in the summary judgment materials and all logically permissible inferences are made in the motion opponent’s favor, Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203 (1991); but mere assertions of the
The plaintiff failed to satisfy her burden in opposing MEC’s summary judgment motion under these standards. Most critically, MEC’s motion presented evidence that the placement of its electric wires in relation to the plaintiff’s residence and the sidewalk and the ground satisfied the applicable industry code, which did not require such wires to be insulated. Such a proffer constituted evidence that the defendant was acting in accord with industry practice and consequently was not negligent in the circumstances. See Corthell v. Great Atl. & Pac. Tea Co., 291 Mass. 242, 243-244 (1935); Clough v. New England Tel. & Tel. Co., 342 Mass. 31, 35-36 (1961); Upham v. Chateau de Ville Dinner Theatre, Inc., 380 Mass. 350, 353-354 (1980); MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 139-140, cert. denied, 474 U.S. 920 (1985).
The plaintiff, however, produced no such admissible evidence — indeed, no evidence of any sort — in response or rebuttal to the motion, except for Karl’s misguided affidavit focusing entirely on Marcy’s irrelevant physical relationship to the ladder. On that state of the record, the court could justifiably rule
The authorities cited earlier for the proposition that proof of compliance with industry practice militates against a finding of negligence recognize that such evidence is not conclusive upon the issue and can be overcome by countervailing relevant evidence from which a jury could find negligence notwithstanding conformity with industry usage. It is, however, a plaintiffs burden to bring forward such evidence, at the peril of losing the summary judgment battle and thus the litigation war. Compare Corthell v. Great Atl. & Pac. Tea Co., 291 Mass. at 243-244 (plaintiff produced no evidence that defendant had reason to anticipate that the shoe the plaintiff was wearing would cause her to be in danger of injuring herself in defendant’s store); Clough v. New England Tel. & Tel., 342 Mass. at 36 (pláintiffs produced no evidence that defendant had reason to anticipate that anyone would be working in proximity to its wires); Gelinas v. New England Power Co., 359 Mass. 119, 125 (1971) (evidence showing that defendant knew individuals such as plaintiff were working close to its live wires, had in fact taken some measures to reduce the risk of those workers coming in contact with the wires, and knew that its wires were of such an age that they might be worn out and. dangle down, precluded a defendant’s directed verdict); Upham v. Chateau de Ville Dinner Theatre, Inc., 380 Mass. at 355-356 (plaintiff’s intended factual presentation showing that defendant had been put on notice that a group of elderly persons, including the plaintiff, would be in attendance at its theatre, so that its semidark lighting customarily found in dinner theaters might be anticipated to be insufficient for such patrons to be able to negotiate the steps, prevented a directed verdict for defendant after plaintiff’s opening); MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. at 140-141 (defendant’s warning booklet mentioning danger of
If such rebutting evidence in the plaintiff’s favor existed, it is reasonable to assume that it would have been uncovered and produced in the two and one-half years between the filing of the complaint and the filing of the summary judgment motion. Alternatively, if the plaintiff had averred that, for good reason, facts essential to defeat the motion were not yet available but could be presented by affidavit if given additional time, she could have moved therefor under Mass.R.Civ.P. 56(f), 365 Mass. 825 (1974), but she did not. It is particularly noteworthy that the plaintiff submitted no affidavits, presumably readily available from the survivors of the accident, contradicting MEC’s evidence that the electric wires were in plain view; or asserting that those involved were unaware of the presence of the electric wires in front of their house; or the possibility that such wires, if they were aware of them, might be uninsulated; or the risks of touching or coming near such wires; or the risks associated with placing ladders of the type being used near electric wires.
The plaintiff seeks to avoid the consequences of her failure to challenge the summary judgment motion with countervailing evidentiary materials by arguing, as she did below, that under Massachusetts law electric companies have a duty to insulate their wires — notwithstanding contrary industry practice — and that the failure to insulate warrants a finding of negligence, or at least makes it a jury question. All of the authorities she relies on, however, are distinguishable. In each case, evidence existed in the record — unlike the situation here — establishing that the defendant electric company was or should have been aware of the fact that individuals similarly situated to the plaintiff would be or had been working near the live wires. It was only on that basis that the court in each case raised a duty to insulate and left it to the jury to determine whether the duty had been properly discharged. See McCrea v. Beverly Gas & Elec. Co., 216 Mass. 495, 498 (1914) (men were required by statute to work in trees to control moths and defendant knew of such work); Philbin v. Marlborough Elec. Co., 218 Mass. 394, 396 (1914) (same); Rasmussen v. Fitchburg Gas & Elec. Light Co.,
The plaintiff cites no Massachusetts case, and we are aware of none, that imposes an unconditional duty on an electric company to insulate its wires in all circumstances. In any event, the issue of the existence of such a duty as the plaintiff avows
The plaintiff advances an additional contention on appeal not made to the court below: that MEC had “a duty to warn of the dangers of electrical hazards,” so that the jury should have been allowed to determine “whether it adequately discharged that duty.” There is no merit to this argument, even setting aside the facts that (a) parties are not permitted to raise for the first time on appeal legal theories and arguments that were not presented for the trial judge’s consideration, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Kagan v. Levenson, 334 Mass. 100, 106 (1956); Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471 & n.25 (1991); West Broadway Task Force v. Boston Hous. Authy., 414 Mass. 394, 397 n.2 (1993); (b) Massachusetts law has imposed an affirmative duty to warn of latent or inherent dangers only on a few limited categories of defendants, see Davis v. Westwood Group, 420 Mass. at 743 (landowners, as to those whose presence on the property can be reasonably anticipated); Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631 (1986) (product manufacturers, as to foreseeable users of the product); Burr v. Massachusetts Elec. Co., 356 Mass. at 147 (employers, as to their employees and independent contractors), none of which categories apply to MEC vis-á-vis Marcy; and (c) even when an affirmative duty to warn theoretically might be imposed, “[i]f a risk is of such a nature that persons of ordinary intelligence would be aware of it,” Davis, supra at 743 n.9, or is “obvious or could be discovered by reasonable inspection,” Burr, supra at 147, the defendant is absolved of the duty.
Most fatally, the cases relied on by the plaintiff for a supposed affirmative duty on electric companies to warn of the dangers of electric wiring do not so hold. Compare Clough v. New England Tel. & Tel. Co., 342 Mass. at 35-36 (duty to warn is not imposed per se but only when the electric company “has some reason to suppose that a warning is needed,” citing to cases involving landowners and manufacturers); Rasmussen v.
Further, whether there is a duty of care is not a jury question, but rather a question of law. Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989). Our courts have long acknowledged that electricity is a highly dangerous force and that those transmitting it are obligated “to exercise care that is commensurate with the risk,” Clough v. New England Tel. & Tel. Co., 342 Mass. at 35; but they have never imposed a special or heightened duty of care as matter of law on electric companies merely because they transmit potentially dangerous electricity, even in cases involving “a member of the general public.”
The proper standard of care is rather the usual one of traditional negligence theory: “to exercise care that was reason
An overview of the Massachusetts cases previously cited dealing with the scope of the duty owed by electric companies with respect to their transmission lines reveals that it is measured by the classic negligence test of foreseeability: for liability to be imposed, the evidence must show that the defendant was chargeable with such knowledge that it should reasonably have foreseen or anticipated the type of injurious risk that eventuated. See Clough v. New England Tel. & Tel. Co., 342 Mass. at 36; Rasmussen v. Fitchburg Gas & Elec. Light Co., 343 Mass. at 519; Gelinas v. New England Power Co., 359 Mass. at 125. While the issue of foreseeability is ordinarily a question of fact for the jury, Simmons v. Monarch Mach. Tool Co., 413 Mass. 205, 211 (1992), the court may decide the issue as matter of law (a) in the absence of evidence that the risk which resulted in the plaintiff’s injury should reasonably have been anticipated by the defendant (i.e., in such a case, the defendant owed no duty to the plaintiff), Glick v. Prince Italian Foods of Saugus, Inc., 25 Mass. App. Ct. 901, 902 (1987); (b) when the risks involved were obvious to persons of average intelligence, Young v. Atlantic Richfield Co., 400 Mass. at 842; and generally (c) when no rational, view of the evidence would warrant a finding of negligence. Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983). The decision below is affirmable as matter of law on all three bases.
In essence, the plaintiff’s argument boils down to the proposition that an electric company should anticipate the risk of fatal contact with its lines from the mere presence of nearby residences. Such a rule would, contrary to our law, see Clough v. New England Tel. & Tel. Co., 342 Mass. at 35, effectively make the electric company an insurer. No relevant authority implies, much less reaches, such an extraordinary result, which would be entirely inconsistent with the ordinary principles of negligence that our courts have previously held applicable to electric companies. As an intermediate appellate court, “it is [not] . . . our function[] to alter established rules of law governing principles of substantive liability.” Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 (1973).
Judgment affirmed.
The submission of Karl Bergendahl’s affidavit in support of the opposition to the summary judgment motion was an effort to portray Marcy as a mere bystander not actively involved in moving the ladder, presumably thereby enhancing her status as a “member of the general public” for purposes of the plaintiff’s legal argument. (The complaint and the plaintiff’s answers to MEC’s interrogatories had stated that Marcy had been helping to move the ladder.) We agree with MEC that the affidavit was irrelevant, because the exact manner in which Marcy came in contact with the ladder or the electricity that flowed through it had no bearing on whether MEC owed her a duty or was in breach of that duty, and was therefore a nonmaterial fact. In this connection, this court has repeatedly frowned upon efforts to create disputed issues of fact, in order to preclude summary judgment, by submitting affidavits that contradict a party’s previous statements or admissions made during discovery. O’Brien v. Analog Devices, Inc., 34 Mass. App. Ct. 905, 906 (1993). Morrell v. Precise Engr., Inc., 36 Mass. App. Ct. 935, 937 (1994). Getter v. Allied-Lyons PLC, 42 Mass. App. Ct. 120, 121 n.2 (1997).
If legally correct, the court’s unexplained decision may be affirmed on any sound basis. Doeblin v. Tinkham Dev. Corp., 7 Mass. App. Ct. 720, 722 (1979).
Compare 220 Code Mass. Regs. § 125.10(l)(c) (1993) (requiring electric transmission lines to be constructed “according to accepted good practice. . . .”); and § 125.23(3) (1993) (requiring a vertical clearance of at least twenty-eight feet for electric wires running above streets, driveways, and areas accessible to residences). In this connection, we are also aware of no statute or regulation that obligates an electric company to insulate its high voltage transmission lines, except “at all points of attachment” to supporting structures (such as poles) and where a wire “enters a building.” G. L. c. 166, § 30. 220 Code Mass. Regs. § 125.26 (1993). See G. L. c. 166, § 34, requiring insulation, to protect the public, of “[p]oles and other structures used to support lines for the transmission of electricity,” but not of the lines themselves.
The plaintiff contends that under Massachusetts law an electric company’s duty to insulate arises because several decisions have recognized that “inasmuch as electricity is a highly dangerous force, those employing it are properly held to a correspondingly high degree of care in its use,” Gelinas v. New England Power Co., 359 Mass. at 124, a recognition that requires (so the plaintiff asserts) a finding of negligence for failure to insulate when “the victim of the accident was a member of the general public,” Burr v. Massachusetts Elec. Co., 356 Mass. at 147, which Marcy was. As discussed above, however, the rationale for liability in the cases relied on by the plaintiff was not whether the victim was a “member of the general public,” but whether “in the exercise of reasonable care [the defendant] should have anticipated that human beings would be directly or indirectly in contact with its charged wires.” Rasmussen v. Fitchburg Gas & Elec. Light Co., 343 Mass. at 519. Gelinas, notwithstanding the quoted observation, relied on evidence presented by the plaintiff that demonstrated facts from which the defendant’s negligence could be inferred under the usual negligence standard. 359 Mass. at 124. The Burr case is also distinguishable. It involved not the general rationale of foreseeability, but rather a reduced duty of care which was applicable because the plaintiff was an independent contractor engaged to trim defendant’s trees that he knew were near the defendant’s wires and to whom the defendant owed only the limited duty it owed as employer and landowner, i.e., disclosing hidden defects of which it was or should have been aware. 356 Mass. at 147. See note 4, supra.
Lawler v. General Elec. Co., 1 Mass. App. Ct. 220, 222 (1973), a case involving liability of the electric company as landowner and employer, stated in dictum that electric companies may be held to a “correspondingly high degree of care” in relation to “a member of the general public” regarding its use or transmission of electricity because of electricity’s “highly dangerous character.” However, the only authorities cited for that dictum were Gelinas and Rasmussen, supra. Those cases, as described above, do not support the dictum either on their facts or on applicable legal principles. See Gelinas, 359 Mass. at 124; Rasmussen, 343 Mass. at 518-519.
The grounds of our decision make it unnecessary to address MEC’s additional argument that its motion was properly granted because the plaintiff had failed to adduce any evidence that MEC’s alleged negligence (rather than the ladder users’ failure to lower the ladder to a safe height and to heed the. safety warnings on the ladder) had proximately caused Marcy’s death.
