United States Court of Appeals
For the First Circuit
No. 07-2654
IAN J. BROWN; JAMES BROWN; BARBARA BROWN,
Plaintiffs, Appellants,
v.
UNITED STATES;
BOSTON EDISON COMPANY, d/b/a NSTAR ELECTRIC,
Defendants, Appellees,
VERIZON NEW ENGLAND, INC.,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Scott E. Charnas, with whom Charnas Law Firm, PC was on
brief, for appellants.
Michael K. Callahan, with whom Marissa A. Goldberg, was on
brief for appellee Boston Edison Company d/b/a NSTAR Electric.
Anita Johnson, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee United States.
February 19, 2009
HOWARD, Circuit Judge. Ian Brown suffered serious
injuries in a motorcycle accident that occurred near Hartwell Road
in Bedford, Massachusetts. Brown's injuries, which resulted from
his collision with a utility pole located off the edge of the road
and on the "road-side" of a guardrail, left him a paraplegic.
Brown and his parents (for convenience, "Brown") brought
a negligence action against Boston Edison, a utility company, and
the United States.1 Brown claimed that both parties were liable
for his injuries because both allowed a dangerous condition -- the
utility pole's location on the road-side of the guardrail -- to
exist off the edge of Hartwell Road.
The district court granted the defendants' summary
judgment motions, concluding that neither the United States nor
Boston Edison owed a duty of care to Brown. The court determined
that the United States owed no duty to Brown because the Town of
Bedford, and not the United States, owned or controlled Hartwell
Road. As a result, the court concluded that the United States was
not responsible for maintaining the road and its appurtenances in
a safe condition. As for Boston Edison, the court concluded that
1
The district court had jurisdiction over Brown's claims as
follows. Brown's claim against the United States was brought under
the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Brown's claim
against Boston Edison was based on diversity of citizenship --
Brown is a citizen of the State of New Jersey and Boston Edison is
a New York corporation with a principal place of business in
Massachusetts. See 28 U.S.C. § 1332. The claim against Boston
Edison involved an amount in controversy exceeding $75,000. Id.
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it owed no duty to Brown because Brown's accident was not
reasonably foreseeable. Brown appeals the district court's
rulings.2 We affirm.
I. Facts
We provide most of the facts here, reserving some for our
discussion of the appellate claims. Because we are reviewing the
district court's grant of summary judgment to the defendants, we
present these facts in the light most favorable to Brown. See Rodi
v. S. New Eng. Sch. of Law, 532 F.3d 11, 13 (1st Cir. 2008).
The Pole
In 1916, the Town of Bedford granted Boston Edison the
right to install a pole line along Hartwell Road. Among the poles
installed was Pole 16/37 ("Pole 16" or "pole") -- the pole at
issue. Boston Edison placed Pole 16 thirteen inches off of a
curved portion of Hartwell Road. As the years passed, Boston
Edison replaced Pole 16, which was made of wood, on a periodic
basis. Specifically, Boston Edison replaced the pole in 1929, 1954
and 1964. So far as is known, however, the position of the pole
never changed. In approximately 1990, an unknown third party
placed a guardrail along Hartwell Road. Standing between the road
and the guardrail was Pole 16.
2
The district court alternatively held that Brown's claim against
Boston Edison was barred by Massachusetts' statute of repose, MASS .
GEN. LAWS ch. 260, § 2B.
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The Accident
At the time of the accident Brown was an Air Force
Lieutenant stationed at Hanscom Air Force base. The base is
located on land bordering Hartwell Road that is owned by the United
States. The accident occurred as Brown was traveling to Hanscom on
his motorcycle via Hartwell Road. Brown, proceeding at a speed of
approximately twenty-five miles per hour, hit a depression in the
road, which caused him to lose control of his motorcycle. Leaping
from the motorcycle, Brown chose the guardrail as an aim point for
his body. The guardrail, however, channeled Brown headfirst into
Pole 16. Although there was no evidence that the pole had ever
been struck prior to Brown's accident, Bedford Town police logs
revealed that, in the eight years preceding Brown's accident,
twenty-eight accidents had occurred in the vicinity of the pole.
II. Discussion
We review a court's grant of summary judgment de novo.
Bogan v. City of Boston, 489 F.3d 417, 424 (1st Cir. 2007). In
this case, Massachusetts law applies to both of Brown's claims.
See Magarian v. Hawkins, 321 F.3d 235, 238 n.4 (1st Cir. 2003);
Soto v. United States, 11 F.3d 15, 17 (1st Cir. 1993).
To prevail in a negligence action under Massachusetts
law, a plaintiff must prove that (1) the defendant owed the
plaintiff a duty of reasonable care; (2) the defendant breached
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this duty; (3) damage to the plaintiff resulted; and (4) the breach
of the duty caused this damage. Jupin v. Kask, 849 N.E.2d 829, 835
(Mass. 2006). Typically, whether a plaintiff has satisfied the
last three elements is for a jury to decide. Id. Whether the
defendant owes any duty in the first place, however, is a question
of law and, therefore, grist for the summary judgment mill.
Afarian v. Mass. Elec. Co., 866 N.E.2d 901, 905 (Mass. 2007) ("The
existence of a legal duty is a question of law appropriate for
resolution by summary judgment."). Central to Brown's claims
against the United States and Boston Edison is the question of
whether either party owed him a duty of care.
Generally, a duty of care exists under Massachusetts law
where the resulting harm was "reasonably foreseeable." Jupin, 849
N.E.2d at 835. More specifically, where an actor is able to
foresee that his conduct could cause harm to others, he is charged
with a duty to exercise reasonable care to avoid this harm. Id.
("To the extent that a legal standard does exist for determining
the existence of a tort duty . . ., it is a test of the 'reasonable
foreseeability' of the harm.") (citation and internal quotation
marks omitted); see also Glick v. Prince Italian Foods of Saugus,
Inc., 514 N.E.2d 100, 102 (Mass. App. Ct. 1987) ("There is no duty
owed when the risk which results in the plaintiff's injury is not
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one which could be reasonably anticipated by the defendant.").3
With this general terrain mapped, we turn first to Brown's claim
against the United States.
Brown's negligence claim against the United States is
premised on his contention that the United States owned and
controlled Hartwell Road -- the road off of which he was injured.
Control is the key as, under Massachusetts law, "it is elementary
that liability for damage caused by the condition of premises
commonly depends upon control of the offending instrumentality,
either through ownership or otherwise." Underhill v. Shactman, 151
N.E.2d 287, 290 (Mass. 1958) (citation omitted); see also McIntyre
v. Boston Redevelopment Auth., 595 N.E.2d 334, 336 (Mass. App. Ct.
1992)("[T]he critical test is who had the right to control the
property.").
Despite Brown's contention to the contrary, the record
evidence overwhelmingly supports the district court's conclusion
that the Town of Bedford, and not the United States, controlled
3
Massachusetts courts have also defined duty in more abstract
terms. See Luoni v. Berube, 729 N.E.2d 1108, 1113 (Mass. 2000)
("The concept of 'duty' . . . 'is not sacrosanct in itself, but is
only an expression of the sum total of . . . considerations of
policy which lead the law to say that the plaintiff is entitled to
protection . . . . No better general statement can be made than
that the courts will find a duty where, in general, reasonable
persons would recognize it and agree that it exists.'") (citation
omitted); Mullins v. Pine Manor Coll., 449 N.E.2d 331, 335 (Mass.
1983) ("[A] duty finds its 'source in existing social values and
customs.'") (citation omitted).
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Hartwell Road either through ownership or otherwise. Several
pieces of evidence stand out.
First, a sworn declaration and a deed both indicate that
the Town of Bedford actually owned Hartwell Road. The United
States' title expert, after examining a multitude of records
including those of the Bedford Town Clerk, testified that the Town
of Bedford took title to Hartwell Road in 1734-35. A 1952 deed
from the Commonwealth of Massachusetts, while granting the United
States fee ownership of the land surrounding Hartwell Road,
explicitly excluded "all public or private roads, right[s] of way
and/or easements now existing within the said boundaries . . . ."4
In addition, the sworn deposition testimony of four
witnesses leads to the conclusion that the Town of Bedford
controlled Hartwell Road. A witness responsible for maintaining
the grounds and roads at Hanscom for decades testified that the
Town of Bedford has always maintained Hartwell Road and that the
employees at Hanscom had never maintained or done anything to the
road. An eighteen-year employee of the Town's Department of Public
Works testified that the Town maintains Hartwell Road and is
responsible for law enforcement on the road. With respect to the
Town's maintenance of the road, this witness noted that the Town
4
The land transferred in the 1952 deed was later divided into two
separate portions in 1977, with the Navy taking "Parcel B," the
portion closest to the accident site. The Air Force retained the
other parcel.
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sweeps, plows, and paves the road, in addition to painting its
street lines and filling its potholes. A previous Bedford Town
foreman who had worked in Bedford's Highway and Grounds Division
testified similarly regarding the Town's maintenance of Hartwell
Road. Finally, the United States' title expert testified that the
Town of Bedford installed a sewer line under the road around 1958.
Finally, the declarations of two government employees
support the United States' position. A civilian employee of the
United States Air Force, responsible for overseeing the real
property for the Air Force facilities at Hanscom Air Force base,
testified that "no agency of the federal government owns or has
owned or maintained Hartwell Road and its shoulders." A civilian
employee of the United States Navy, responsible for managing the
Navy's portion of the Hanscom land, testified that the road was
used as a public road and that the Navy "did no maintenance,
construction, planning, public safety, or law enforcement work with
regard to the road."
Faced with this substantial evidence, Brown nevertheless
argues that two other pieces of evidence turn the issue of control
into a question for the jury. After closer examination of this
evidence, we disagree.
Brown offers the affidavit of a licensed attorney, who
opined that the Town of Bedford has merely an easement interest in
Hartwell Road and that the United States is the fee owner of the
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road. Even if this testimony were enough to put the ownership of
Hartwell Road into question, the distinction made in the affidavit
is immaterial. As detailed above, the record evidence makes
manifest that the Town of Bedford exercised control over Hartwell
Road in every conceivable sense.
Brown also offers the deposition of Arthur Hayes, an Air
Force specialist in cartography and real estate. Hayes testified
that the Navy owns the land upon which Pole 16 stands. This
testimony, however, does not create a question of material fact for
two reasons. First, Hayes's testimony as to ownership suffers from
an inherent flaw. It is based primarily on the 1952 deed that
transferred ownership of the Hanscom land from the Commonwealth of
Massachusetts to the United States. As detailed above, this deed
explicitly excluded "all public or private roads, right of way
and/or easements now existing." Second, and again, even if a
material fact existed as to the ownership of Hartwell Road, the
record evidence plainly shows that the Town of Bedford controlled
Hartwell Road. See McIntyre, 595 N.E.2d at 336.
As we have noted, in order to forestall summary judgment,
the record evidence must be "'sufficiently open-ended to permit a
rational fact finder to resolve the [liability] issue in favor of
either side.'" Ramírez-Carlo v. United States, 496 F.3d 41, 46
(1st Cir. 2007) (citation omitted). Here, given the significant
evidence indicating that the Town of Bedford, and not the United
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States, controlled Hartwell Road, we conclude that the district
court appropriately granted summary judgment to the United States.
We turn to Brown's claim against Boston Edison. Unlike
the United States, Boston Edison concedes owning part of the
allegedly dangerous condition, viz., Pole 16.5 We thus return to
the governing principles of Massachusetts negligence law. In cases
where the liability of a utility company for harm caused by one of
its utility poles is at issue, the Supreme Judicial Court of
Massachusetts has taken a more focused approach to the duty
analysis. In such cases, the duty analysis is directed by § 368 of
the Restatement (Second) of Torts. Afarian, 866 N.E.2d at 907
(concluding that the principles expressed in § 368 "provide a
functional framework for determining the issue of duty"); id. at
908 ("We adopt the approach set forth in § 368 of the Restatement
because it comports with concepts of reasonable foreseeability . .
. .").6
5
We noted earlier that the general rule is that "liability . . .
commonly depends upon control of the offending instrumentality,
either through ownership or otherwise." See Underhill, 151 N.E.2d
at 290 (emphasis added). As we discuss infra, however, where the
liability of a utility company for harm caused by one of its
utility poles is at issue, Massachusetts law, following § 368 of
the Restatement (Second) of Torts, focuses on "possession." Any
potential dissonance between these standards is of no consequence
here. Boston Edison concedes that it owns the pole and that it is
responsible for the pole's maintenance. The company does not put
its "control" of the pole into question, nor does it controvert
"possession" for purposes of analysis under § 368.
6
The parties appear to be under the impression that the Maryland
Court of Appeals' decision in Coates v. S. Md. Elec. Coop., Inc.,
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Section 368, titled "Conditions Dangerous to Travelers on
Adjacent Highway," deals specifically with liability for harm
caused by artificial conditions on land bordering highways.7
Section 368 provides:
A possessor of land who creates or permits to
remain thereon an . . . artificial condition
so near an existing highway that he realizes
or should realize [the artificial condition]
involves an unreasonable risk to others
accidentally brought into contact with such
condition while traveling with reasonable care
upon the highway, is subject to liability for
physical harm thereby caused to persons who
(a) are traveling on the highway, or (b)
foreseeably deviate from it in the ordinary
course of travel.
Before proceeding to the duty analysis, we pause to
address some tangential issues. Here, all parties agree that the
artificial condition that posed the risk of harm is not the pole
alone but the location of the pole on the road-side of the
guardrail. And although Boston Edison did not "create" this
731 A.2d 931 (Md. 1999) -- which identified a number of factors a
court may consider when conducting the duty analysis in cases where
a utility pole has been struck -- is controlling. The parties are
mistaken. Although the Supreme Judicial Court referenced Coates in
the Afarian decision, it made clear that Coates is merely
illustrative of one approach courts have taken when examining cases
that arise in this context. Afarian, 866 N.E.2d at 906. The
Supreme Judicial Court explicitly adopted the approach articulated
in § 368 of the Restatement rather than the Coates approach. Id.
at 908.
7
Although § 368 speaks to potential duties owed by the "owners or
occupiers" of the bordering land, the Supreme Judicial Court
established in Afarian that duties may be owed by utility companies
that maintain poles on the bordering land. 866 N.E.2d at 908.
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condition insofar as the guardrail was installed by an unknown
third party, the argument runs that it permitted the condition to
remain on the bordering land.
With that brush cleared we are presented with two central
inquiries: whether a reasonable jury could find (1) that Boston
Edison realized or should have realized that the pole's location
posed an unreasonable risk of harm to the traveling public and (2)
that Brown foreseeably deviated from the highway. The parties
train much of their fire on the latter question, realizing that in
order for Brown to be included in the class of plaintiffs covered
by § 368, he must have foreseeably deviated from the highway. See
Afarian, 866 N.E.2d at 908 (not reaching the question of whether
utility company realized or should have realized pole placement
created an unreasonable risk of harm because drunk driver did not
foreseeably deviate from highway); see also Miller v. Highway
Comm'r, 801 N.E.2d 599, 606 (Ill. App. Ct. 2004) ("For a duty to
arise under section 368, the person to whom the duty is owed must
foreseeably deviate from the roadway in the ordinary course of
travel . . . ."). But both inquiries must be answered, and we
focus our attention on the equally dispositive former question --
whether Boston Edison realized or should have realized that the
location of the pole on the road-side of the guardrail posed an
unreasonable risk of harm to the traveling public. This is, at
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bottom, also a question of foreseeability, albeit not the same
question as is posed by the second inquiry.
Nothing in the record suggests that Boston Edison
actually realized that the pole posed an unreasonable risk because
of its location in relation to the guardrail. Prior to Brown's
accident, the guardrail had never channeled anyone into the pole,
and in fact, the pole had never been struck. And Brown failed to
produce evidence that the dangerous condition had been brought to
Boston Edison's attention.
Thus, the question becomes whether Boston Edison should
have realized that the pole's location posed an unreasonable risk
to the traveling public. After examining the record, we must
answer this question in the negative.
No reasonable jury could conclude that Boston Edison
should have realized, when it originally placed or replaced Pole
16, that the pole's location in relation to the guardrail posed an
unreasonable risk to the traveling public. The reason is obvious.
The guardrail did not exist until approximately 1990, and Boston
Edison had most recently replaced the pole in 1964, twenty-six
years prior.
Brown wisely eschews any argument to the contrary and
instead suggests that Boston Edison should have realized that the
guardrail/pole combination posed an unreasonable risk because, in
the eight years preceding Brown's accident in 2002, twenty-eight
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motor vehicle accidents occurred in the vicinity of the pole. To
support this point, he submitted police logs to the district court
which catalogued these accidents. We are not persuaded, however,
that these police logs create a triable issue for the jury.
Even if we were to assume that Massachusetts law would
impose a duty on utility companies to survey the location of its
poles if made aware that accidents occurred in the vicinity of the
poles, and we doubt it would, nothing in the record indicates that
Boston Edison was presented with information or otherwise made
aware that accidents were occurring in the vicinity of Pole 16.
Therefore, for Brown's argument to succeed, we must assume that
Massachusetts law would impose an additional duty on utility
companies -- the duty to independently seek out information about
accidents occurring near its poles. We read nothing in
Massachusetts law that counsels the imposition of such a duty. See
Afarian, 866 N.E.2d at 908 ("In view of our society's dependence on
the services supplied by utility companies, and the public benefit
of receiving those services, public policy favors some limitation
on the liability of utility companies.") (citations omitted).8
8
We note that Brown does not argue that Boston Edison was under a
continuing duty to inspect the location of all of its utility poles
in order to determine whether changing road conditions had made the
poles a risk to travelers.
Declining to advance such an argument was wise. We are aware
of no judicial decision imposing such a vast precautionary duty on
utility companies and the few courts that have directly considered
whether such a duty exists have concluded that it does not. See
Coates, 731 A.2d at 945 (concluding that a utility company is
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Having concluded as we do, there is no need to reach the district
court's alternative holding -- that Brown's claim against Boston
Edison is barred by Massachusetts' statute of repose, MASS . GEN . LAWS
ch. 260, § 2B.9
III. Conclusion
For the reasons provided above, the judgment is affirmed.
AFFIRMED.
"under no tort duty to make any massive engineering inspection of
all of [its] poles . . . existing along the streets and roads of
the State"); Miller, 801 N.E.2d at 609-10 (declining to impose on
the utility company a duty that would require the company to
"continuously monitor changes in road and other relevant conditions
to determine whether a particular utility pole had been placed in
a dangerous location").
9
As a postscript, we note that Brown argues that the district
court erred when it refused to consider the Massachusetts Highway
Design Manual, which Brown attached to his opposition to summary
judgment motion. Brown attached the manual for the purpose of
establishing that guardrails are used to prevent a vehicle from
leaving the roadway and striking a fixed object more objectionable
than the guardrail itself. The district court declined to consider
the manual, concluding that Brown made no showing that the manual
was applicable to the guardrail installed on Hartwell Road or that
it was in effect when the guardrail was installed. Whether or not
the district court erred when it refused to consider the manual,
however, is of no consequence in light of our duty analysis above.
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