Johnson v. Chateau De Ville, Inc., 20 Mass. App. Ct. 933

Johnson v. Chateau De Ville, Inc.

20 Mass. App. Ct. 933 | Mass. App. Ct. | 1985

The defendant claims the judgment was correct because the defendant owes no duty of care to the plaintiff “with respect to traffic conditions” on a public highway. The defendant’s argument misses the point. While the defendant has no duty as to traffic conditions on the highway, there may, in the circumstances, be a duty to design the entrance in such a way as to take those conditions into account.

The defendant also argues that the plaintiff has presented no fact to the motion judge showing the existence of a defective condition for which the defendant is responsible. Again, the defendant misconceives the issue. As the moving party, it has not met its burden of “affirmatively demonstrating that there is no genuine issue of fact on every relevant issue raised by the pleadings [or in the answers to interrogatories]. This is so even though *934. . . [it] would have no burden if the case were to go to trial.” Attorney Gen. v. Bailey, 386 Mass. 367, 371 (1982), quoting from Mack v. Cape Elizabeth Sch. Bd., 553 F.2d 720, 722 (1st Cir. 1977). Berrios v. Perchik, ante, 930 (1985). See also Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 37 (1985), and Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984), as to the scope of summary judgment in a negligence action.

Robert E. Fox for the plaintiff. James E. Grumbach, D. Alice Olsen & Robert M. Raciti for the defendant.

The judgment is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

The case was submitted on briefs.