Doherty v. Town of Belmont

• Decision Date: 25 November 1985
• Citation: 485 N.E.2d 183,396 Mass. 271
• Parties: Mary E. DOHERTY v. TOWN OF BELMONT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 183

485 N.E.2d 183

396 Mass. 271

Mary E. DOHERTY v. TOWN OF BELMONT.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 7, 1985.

Decided Nov. 25, 1985.

Devra G. Bailin, Boston, for defendant.

Leonard F. Zandrow, Jr. (Philander S. Ratzkoff, Boston, with him) for plaintiff.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The plaintiff brought two actions against the town of Belmont for personal injuries arising out of an accident in the town's parking lot. ¹ Following a trial in the Superior Court, the jury returned a verdict for the plaintiff. The town moved for judgment notwithstanding the verdict, which the judge denied. We allowed the town's application for direct appellate review.

The town contends that the judge erred in submitting the case to the jury, and in denying its motion for judgment notwithstanding the verdict, because the plaintiff had failed to present evidence warranting an inference of negligence. Specifically, the town argues that it owed no duty to the plaintiff; that even if a duty was owed the town did not violate this duty; that the plaintiff failed to produce sufficient evidence that the town's negligence caused the plaintiff's injuries; and, finally, that the town's actions fell within the discretionary function exception to the Massachusetts Tort Claims Act, G.L. c. 258, § 10(b ) (1984 ed.). We affirm.

We summarize the facts. On December 15, 1980, Mary E. Doherty parked her car in the Claflin Street parking lot in the town of Belmont. This lot is owned and operated by the town and maintained by the Belmont highway department. Doherty parked her car close to a median strip in the public lot. Upon leaving her vehicle, Doherty stepped up onto the median strip. Because it had snowed on the previous day, the median was spotted with slush and ice. Doherty took a few steps on the median before she tripped over a "bump" and fell. As a result of her fall, Doherty fractured both her elbow and her pelvis. A police photographer took a picture of the general area where Doherty tripped. In the center of this photograph is a one-half to three-quarter inch high cement mound, with a metal "stump" protruding slightly above it where a parking meter had once stood.

In 1977, the town had switched from an individual parking meter system to a single parking ticket dispenser at the entrance to the Claflin lot. Sometime between 1978 and 1979 the Belmont highway department removed the old parking meters. The superintendent of this department instructed his laborers to cut the meter posts close to the ground, and then to pound the remaining stubs into the cement while the metal was still hot from the welding operation. Several parking meter stubs remained protruding from the median strip after 1979, supporting the inference that at least some of these stubs had not been pounded into the cement as directed.

On appeal, the town first argues that it owed no duty to the plaintiff other than that owed to the general public. The town relies on a series of cases beginning with Dinsky v. Framingham, 386 Mass. 801, 438 N.E.2d 51 (1982). In Dinsky we held that the plaintiffs could not recover against the town for negligently issuing a building permit when the town's only duty under the building code was owed to the general public, and not to the plaintiffs in their individual capacities as homeowners. Id. at 810, 438 N.E.2d 51. See Ribeiro v. Granby, 395 Mass. 608, 613, 481 N.E.2d 466 (1985) (town not liable for damages resulting from fire in plaintiffs' apartment where only duty under building code owed to general public). The Dinsky holding was expressly limited to the public inspection context by our decision in Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984). In Irwin we upheld the plaintiffs' recovery against a town for injuries and deaths resulting from a collision with a vehicle operated by an intoxicated driver who had been questioned and released by the town police. We held that there is a "special relationship" between police officers and persons who are injured because of the officers' negligent failure to remove an intoxicated motorist from the highway. Id. at 762, 467 N.E.2d 1292.

The town's reliance on these "public duty" cases is misplaced, because the town's duty in the case at bar does not arise from the general language of a regulatory or criminal statute, but rather from the town's status as a landowner. Under the Massachusetts Tort Claims Act, municipalities are liable "in the same manner and to the same extent as a private individual under like circumstances." G.L. c. 258, § 2 (1984 ed.). Gallant v. Worcester, 383 Mass. 707, 714, 421 N.E.2d 1196 (1981) (reversing dismissal of wrongful death action under c. 258). The town must thus be treated the same as an owner of a private parking lot for the purposes of liability under G.L. c. 258. A landowner owes a single duty of reasonable care to all persons lawfully on his premises. Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973) (abolishing distinction between licensees and invitees). See Poirier v. Plymouth, 374 Mass. 206, 207, 372 N.E.2d 212 (1978) (affirming judgment against town under c. 258 for defective ladder on town's water tank). Doherty was lawfully on the town's premises when she suffered her fall; indeed, she entered the parking lot as a paying customer. The town owed Doherty a duty of reasonable care in her individual capacity as a parking lot patron, apart from any general duty owed to the public at large. Thus it was not error for the judge to submit to the jury the question whether the town violated this duty.

Second, the town argues that there was, as a matter of law, no defect with respect to the parking meter stump, and therefore that it was error for the judge to submit the question of negligence to the jury. The town relies on a series of cases decided under G.L. c. 84, § 15, where we held that extremely minor imperfections on public ways did not constitute actionable defects within the meaning of that statute. See, e.g., Galante v. Brockton, 305 Mass. 480, 481, 26 N.E.2d 341 (1940) (no actionable defect where cement sidewalk had separated one inch from granite curbing); Vellante v. Watertown, 300 Mass. 207, 208, 14 N.E.2d 955 (1938) (no defect where sidewalk slab tilted three-fourths of an inch above rest of sidewalk). The town argues that a metal stub which rises one-half to three-quarters of an inch above a parking lot median is not, as a matter of law, sufficient evidence of negligence to go to the jury, and that the judge thus should have directed a verdict for the town.

We note at the outset that this case is not governed by G.L. c. 84, § 15 (1984 ed.), which limits the liability of municipalities for personal injuries or property damage resulting from defects in public ways. As the town concedes, the town parking lot is not a public way within that chapter. The plaintiff appropriately bases her cause of action on the common law. Common law standards of negligence, and not precedent under c. 84, § 15, are thus controlling. See Gallant v. Worcester, supra, 383 Mass. at 714, 421 N.E.2d 1196. In addition, the policy considerations underlying our decisions in Galante and Vellante are not present in the case at bar, rendering these cases unpersuasive even by way of analogy. In those cases we held,...