Bergendahl v. Massachusetts Elec. Co., 97-P-1317

• Decision Date: 13 November 1998
• Docket Number: No. 97-P-1317,97-P-1317
• Citation: 45 Mass.App.Ct. 715,701 N.E.2d 656
• Parties: Charlotte BERGENDAHL 1 v. MASSACHUSETTS ELECTRIC COMPANY.
• Court: Appeals Court of Massachusetts

Page 656

701 N.E.2d 656

45 Mass.App.Ct. 715

Charlotte BERGENDAHL ¹ v. MASSACHUSETTS ELECTRIC COMPANY.

No. 97-P-1317.

Appeals Court of Massachusetts Essex.

Argued June 11, 1998.

Decided Nov. 13, 1998.

Martin J. McNulty, Lynn (Dana A. Curhan, Boston, with him), for plaintiff.

Nicholas J. DeNitto, Westborough, for defendant.

Before BROWN, GREENBERG and LAURENCE, JJ.

LAURENCE, Justice.

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.

The facts, essentially undisputed, are as follows. On August 22, 1992, Marcy was visiting her family at their home in Lynn. At the time, her father, Arvid Bergendahl, was outside painting the exterior of his house. Arvid came inside and asked for help moving the ladder he was using. Marcy, her brother Karl, and her fiance, William Hartman, went outside to assist Arvid. The ladder Arvid was using was an aluminum extension ladder, twenty feet long in a closed position and forty feet long when fully extended, which had been extended to at least thirty-two feet. Affixed to the ladder was a warning label that it would conduct electricity in the event of contact with a live wire.

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 requirements, the well-known dangers of electric wires, and the plain and obvious nature of the wires with which the extended ladder had come in contact.

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 plaintiff's 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. ² (At no time did the plaintiff allege or argue that the fatal power lines were in any way defective or poorly maintained.)

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 elaborated upon her legal position at the hearing by contending that whether such a duty existed was itself a jury question, in addition to the issues whether the duty was owed to the decedent and whether it was adequately discharged in the circumstances. Soon after the hearing, the court, without opinion, allowed MEC's motion and dismissed the complaint. We conclude that the court's decision was correct on the present record and affirm. ³

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, 340 N.E.2d 877 (1976). Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (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, 532 N.E.2d 1211 (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, 575 N.E.2d 1107 (1991). Accord Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (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, 532 N.E.2d 1211. "[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, 572 N.E.2d 7 (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, 581 N.E.2d 475 (1991); but mere assertions of the existence of disputed facts without evidentiary support cannot defeat the summary judgment motion. LaLonde v. Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989).

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 not negligent in the circumstances. See Corthell v. Great Atl. & Pac. Tea Co., 291 Mass. 242, 243-244, 196 N.E. 850 (1935); Clough v. New England Tel. & Tel. Co., 342 Mass. 31, 35-36, 172 N.E.2d 113 (1961); Upham v. Chateau De Ville Dinner Theatre, Inc., 380 Mass. 350, 353-354, 403 N.E.2d 384 (1980); MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 139-140, 475 N.E.2d 65, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985). ⁴ Additionally, the materials supporting MEC's motion established that the wires were not hidden or obscured, but rather unobstructed and openly visible from the decedent's perspective. That combined evidence tended to "negate an essential element of the opponent's case," namely, that MEC was negligent with respect to the location and condition of the wires. See Restatement (Second) of Torts § 281(b) (1965). To avoid losing the motion, the plaintiff was obligated to respond by showing with admissible evidence the existence of a dispute as to the fact of MEC's negligence. Godbout v. Cousens, 396 Mass. 254, 261, 485 N.E.2d 940 (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 in favor of MEC, notwithstanding customary judicial reluctance to grant summary judgment in negligence cases, see Manning v. Nobile, 411 Mass. 382, 388, 582 N.E.2d 942 (1991), because "no rational view of the evidence warrant[ed] a finding that the defendant was negligent." See Young v. Atlantic Richfield Co., 400 Mass. 837, 841-842, 512 N.E.2d 272 (1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988) (no basis...