Brown v. United States

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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