Brown v. U.S.

• Decision Date: 26 September 2007
• Docket Number: Civil Action No. 04-11924-RGS.
• Citation: 514 F.Supp.2d 146
• Parties: Ian J. BROWN, James Brown, and Barbara Brown, v. UNITED STATES of America, Verizon New England, Inc., and Boston Edison Company d/b/a/ Nstar Electric.
• Court: U.S. District Court — District of Massachusetts

514 F.Supp.2d 146

Ian J. BROWN, James Brown, and Barbara Brown, v. UNITED STATES of America, Verizon New England, Inc., and Boston Edison Company d/b/a/ Nstar Electric.

Civil Action No. 04-11924-RGS.

United States District Court, D. Massachusetts.

September 26, 2007.

COPYRIGHT MATERIAL OMITTED

Scott E. Charnas, Manheimer & Charnas, LLP, Boston, MA, for Ian J. Brown, et al.

Anita Johnson, Assistant United States Attorney, Boston, MA, for United States.

Michael K. Callahan, Marissa A. Goldberg, NStar Electric & Gas Corporation, Boston, MA, for Boston Edison Company d/b/a/ NStar Electric.

MEMORANDUM AND ORDER ON THE MOTIONS OF THE UNITED STATES AND BOSTON EDISON FOR SUMMARY JUDGMENT

RICHARD G. STEARNS, District Judge.

BACKGROUND

On January 4, 2002, First Lieutenant Ian Brown left Hanscom Air Force Base (Hanscom) on his motorcycle to take his lunch break at home. While returning to his duty station, Lt. Brown lost control of the bike on Hartwell Road in Bedford, Massachusetts. Hartwell Road is a semi-rural, two-lane public highway. The shoulders of Hartwell Road are not paved. At the stretch where the accident occurred, Hartwell Road curves gently to the left. A guardrail is situated approximately two feet to the right of the edge of the pavement. A stone wall backed by a chain link fence lies immediately behind the guardrail. The posted speed limit is 25 miles per hour. According to Lt. Brown, he was traveling at "about 25 m.p.h. at the time of the accident."

Brown was thrown from the bike into the guardrail. He was propelled headfirst along the guardrail into a utility pole. The pole was located on the inside of the guardrail approximately thirteen inches from the edge of the road. The accident left Lt. Brown permanently paralyzed from the waist down.¹ Lt. Brown was honorably discharged from the Air Force as a result of his injuries. He now lives in Neptune, New Jersey with his parents, Barbara and James Brown, who have renovated their home to accommodate their wheelchair-bound son.

On September 2, 2004, Lt. Brown, joined by his parents, brought suit against the United States, Verizon New England, Inc. (Verizon), and NStar (formerly Boston Edison Company).² The Browns alleged negligence on the part of the United States, Verizon, and Boston Edison in the siting and maintenance of the utility pole and the guardrail. After discovery, the United States and Boston Edison moved separately for summary judgment.³ The United States argues that it owed no duty to Lt. Brown because it never owned or maintained Hartwell Road. Boston Edison maintains that Lt. Brown's accident was not reasonably foreseeable, and that in any event, the claims brought by the Browns are barred by the Massachusetts Statute of Repose, For reasons to be stated, judgment will enter for the United States and Boston Edison.

DISCUSSION

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "`[G]enuine' means that the evidence is such that a reasonable jury could return a verdict for the nonmoving party,' and a `material fact' is one which `might affect the outcome of the suit under the governing law.'" Buchanan v. Maine, 469 F.3d 158, 166 (1st Cir.2006), quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-219 (1st Cir. 2004).

The Motion of the United States

The Browns' negligence claim against the United States is premised on the belief that the United States owns Hartwell Road and is therefore responsible for maintaining the Road and its appurtenances in a safe condition. The suit against the United States is brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). The FTCA waives sovereign immunity and grants federal district courts jurisdiction over tort claims where the United States, "if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."⁴ 28 U.S.C. § 1346(b)(1). See FDIC v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Under Massachusetts law, "[a] landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk." Mounsey v. Ellard, 363 Mass. 693, 708, 297 N.E.2d 43 (1973), quoting Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 100 (D.C.Cir.1972).

The relevant material facts viewed in the light most favorable to the Browns are as follows. Utility pole 16/37 (the pole that figured in Lt. Brown's accident) was installed by Boston Edison in 1916, and replaced with new but otherwise identical poles in 1929, 1954, and 1964. The guardrail was installed in 1990. While the evidence does not identify with certainty the person or persons responsible for installing the guardrail, the parties agree that the United States had no role in its construction or placement.

In 1987, Raytheon Corporation leased the land immediately to the south of the site of Lt. Brown's accident from the United States Navy.⁵ Raytheon vacated the parcel in 1998 and returned the land to the possession of the Navy. The Navy at all times considered Hartwell Road to be a public way under the jurisdiction of the Town of Bedford (Town). A search of Navy records conducted by Jerry Peterson, a civilian Navy employee and Rule 30(b)(6) witness, failed to find any mention of the pole or guardrail. Dennis Cronin, an Air Force employee who was also designated as a Rule 30(b)(6) witness, testified that the Air Force never claimed ownership of Hartwell Road and never took responsibility for its upkeep.⁶

The overwhelming evidence points to the Town as the owner and custodian of Hartwell Road. Armand Ouellette, the Superintendent of Grounds at Hanscom testified that during his many years at the base, the Town had maintained and made improvements on Hartwell Road. "We've never had the road, we've never maintained it, and we've never done anything to it." Ouellette Dep., at 32. Adrienne St. John, who worked as an engineer for the Town for eighteen years, agreed that the maintenance of Hartwell Road was the Town's responsibility.⁷ Charles Genetti, who worked for the Town's Department of Public Works from 1948 until 1983 as a foreman in the highway and grounds division, oversaw the Town's maintenance of Hartwell Road. Genetti Dep., at 9-10. Genetti testified that the Town kept Hartwell Road "clean, cut the brush on the side of the road, put down liquid asphalt and hot top," applied cold asphalt to repair frost heaves and fill in "dangerous" (more than 2 inches below the asphalt surface) manhole covers, and handled all snow removal. Id. at 21-24.

Daniel Bremser, a land surveyor hired by the government, testified that his search of the historical records established that the Town took title to Hartwell Road in 1734 or 1735.⁸ (The authenticity of the historical records on which Bremser relied in rendering his expert report is not disputed). Bremser noted that Hartwell Road is largely bounded by ancient stone walls, including the `segment of the Road where Lt. Brown's accident occurred. Stone walls were traditionally erected as boundary markers in colonial New England. See Ryan v. Stavros, 348 Mass. 251, 265, 203 N.E.2d 85 (1964) (walls and fences are reliable indicators of property lines), As a result, Massachusetts law recognizes ancient fences and walls as decisive proof of the boundary between private property and a public way.⁹

A 1938 map located by Bremser clearly indicates the ancient stone wall at the accident site behind the guardrail and Pole 16/37. The Town long ago recognized the stone walls as setting the outer boundaries of Hartwell Road by widening the Road from the stone walls inward, and installing sewer lines on the adjacent shoulders without seeking easements from the owners of the adjoining property. The Town also prior to the accident made a specific grant of permission to Boston Edison to install Pole 16/37 on the shoulder of Hartwell Road.

The only evidence offered by plaintiffs to rebut the government's disclaimer of ownership is a plan recorded by the United States at the Middlesex South Registry of Deeds in 1993 (Plan # 809) that references the Navy parcel as "Total U.S. Navy Jurisdiction: Area = 44.6334 acres including Hartwell Road," and an assertion made by Arthur Hayes, a Navy cartographer, during a Rule 30(b)(6) deposition that the Navy "owns" the land on which Pole 16/37 is sited.¹⁰

Even assuming that a dispute of material fact exists as to whether the United States held formal title to Hartwell Road in some capacity prior to Lt. Brown's accident, it is undisputed that the United States never exercised a right of dominion. Instead, the Town at all times was in possession and control of Hartwell Road. See McIntyre v. Boston Redevelopment Auth., 33 Mass.App.Ct. 901, 901-902, 595 N.E.2d 334 (1992) ("The critical test [for a plaintiff attempting to recover damages from a landowner for an injury occurring on the property] is who had the right to control the property."). Under Massachusetts law, a party vested with exclusive control of property, whether by easement or prescriptive use, is responsible for maintaining it in a reasonably safe condition (regardless of who holds title). See Archambault v. Williams, 359 Mass. 742, 743, 268 N.E.2d 926 (1971) ("[N]o obligation is imposed on the grantor of an easement to maintain or repair the land placed in servitude."); Robert Williams, Inc. v. Ferris, 355 Mass. 288, 293-294, 244 N.E.2d 736 (1969) (whether the responsibility for maintaining property in a safe condition falls on the fee owner or the easement owner depends on possession and control); Shapiro v....