2009 Mass.App.Div. 112 (2009), 09-ADMS-10004, Bonnell v. MCM Realty Trust

Docket Nº:09-ADMS-10004.
Citation:2009 Mass.App.Div. 112
Opinion Judge:COVEN, J.
Party Name:Richard BONNELL and another [1] v. MCM REALTY TRUST and others.[2]
Attorney:Joseph F. Lasorsa, Esq., Milford, MA, for plaintiffs. Gerard T. Donnelly, Esq., Hassett & Donnelly, P.C., Worcester, MA, for defendants.
Case Date:June 24, 2009
Court:Massachusetts Appellate Division
 
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2009 Mass.App.Div. 112 (2009)

Richard BONNELL and another 1

v.

MCM REALTY TRUST and others. 2

No. 09-ADMS-10004.

Massachusetts Appellate Division, District Court Department, Northern District.

June 24, 2009

Heard April 17, 2009.

In the Marlborough Division, Docket No. 0766-CV-0024, Brant, J.

Joseph F. Lasorsa, Esq., Milford, MA, for plaintiffs.

Gerard T. Donnelly, Esq., Hassett & Donnelly, P.C., Worcester, MA, for defendants.

OPINION

COVEN, J.

Summary judgment was entered for the defendants on the plaintiffs' claims arising out of plaintiff Richard Bonnell's (" Bonnell" ) 3 fall on stairs alleged to be on property under the ownership or control of the defendants. This Dist./Mun. Cts. R.A.D.A. 8A expedited appeal followed.

In March of 1985, the defendants purchased property identified as 24-26 Main Street in Milford, Massachusetts and continuously owned this property through December 16, 2004, the date of the alleged accident. Located on the property are two connected buildings. The first building at 24 Main Street is situated along Main Street and consists of two commercial units. Data Frontiers, Bonnell's employer, has occupied one of these units since 1998. The second building at 26 Main Street is located behind, and connected to, 24 Main Street. It has consisted of one first-floor commercial unit, occupied by Data Frontiers since 2001, one second-level residential unit, and one small office unit on the second floor. One of the defendants, John

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Mazzone (" Mazzone" ), maintained the small office for his business as an electrician. Mazzone has also served, essentially, as the property manager.

A parking lot, created in 2001, is in the rear of the property. A deeded right of way exists to the left of the buildings. A paved driveway is to the right of the buildings, but it does not provide vehicle access to the parking area. A dumpster, leased by Data Frontiers since 2001 when it also took occupancy of the rear building, is located in the rear-parking area. Data Frontiers employees could access the leased rear space only from the right side of the building.

In the early to mid-1990s, a former commercial tenant, a day care provider, erected a fence at the right-rear side of the property. During the same period of time, the residential tenant asked permission from Mazzone to cut an opening in the fence erected by the commercial tenant in order to create a garden behind the property. The tenant received permission, cut a section of the fence, hinged the section, and created a gate. The tenant also installed two steps, which consisted of two treads descending from the gate toward the then nonexisting rear-parking area. One of Data Frontiers' employees described the stairs as " rickety." The defendants did not have the property surveyed prior to the erection of the fence.

A footpath would bring a traveler from the rear-parking area to the steps. Separating the steps and the rear-parking area was a grade of rocky terrain and a retaining wall. Some of Data Frontiers' employees referred to this as a " shortcut," and one described the path of the shortcut as " soil and loose rock" with " footing [that] was poor." Bonnell testified in his deposition that, during winter months, the stairs were treated and shoveled and, in other seasons, were kept clear of plant...

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