Nelson v. Massachusetts Port Authority, 00-P-383.

• Decision Date: 12 July 2002
• Docket Number: No. 00-P-383.,00-P-383.
• Citation: 55 Mass. App. Ct. 433,771 N.E.2d 209
• Court: Appeals Court of Massachusetts
• Parties: Brian NELSON, administrator,<SMALL><SUP>1</SUP></SMALL> v. MASSACHUSETTS PORT AUTHORITY.

771 N.E.2d 209

55 Mass. App. Ct. 433

Brian NELSON, administrator,¹ v. MASSACHUSETTS PORT AUTHORITY.

No. 00-P-383.

Appeals Court of Massachusetts, Middlesex.

Argued February 7, 2002.

Decided July 12, 2002.

Howard S. Ross, Sharon, for the plaintiff.

Christopher A. Kenney, Boston, for the defendant.

Present: GELINAS, CYPHER, & KANTROWITZ, JJ.

KANTROWITZ, J.

What is the duty of one who owns a bridge to one who commits suicide by jumping from it? The plaintiff, Brian Nelson, administrator of the estate of the decedent, Kathleen Nelson, brought an action for wrongful death pursuant to G.L. c. 229, § 2, and for conscious pain and suffering pursuant to G.L. c. 229, § 6, against the defendant, Massachusetts Port Authority (Massport). A Superior Court judge allowed Massport's motion for summary judgment, and the plaintiff now appeals. We affirm.

Facts. Massport owns and operates the Tobin Bridge. Approximately twelve people per year, for at least ten years prior to the decedent's death, have attempted suicide by jumping off this bridge.

In 1986, Massport promulgated procedures to deal with the effects of attempted suicides on the bridge, and installed a camera surveillance system² which covered fifty percent of the bridge.

The decedent had received treatment for depression at the Stoney Brook Counseling Center (Stoney Brook). She began to express suicidal ideation to the staff at Stoney Brook on August 20, 1992. On August 28, 1992, she drove to the middle of the Tobin Bridge in Boston, stopped at a location without camera surveillance,³ got out of her car, and jumped to her death.

The claim. Brian Nelson, as administrator of the estate of Kathleen Nelson, brought an action for wrongful death and conscious pain and suffering against Massport and others,⁴ and demanded a jury trial. The complaint alleged that Massport "negligently failed to institute adequate safeguards to prevent individuals from taking their own lives by jumping [off] the Tobin Bridge, which was under its control."

On appeal, the plaintiff argues that the Superior Court judge erred in allowing Massport's motion for summary judgment and misstated the law in ruling that suicide bars recovery in wrongful death actions unless it was the defendant's prior wrongful act that caused the disturbed state of mind leading to the suicide.

Discussion. Summary judgment shall be granted where there are no material facts in dispute and 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 that it is entitled to judgment as matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). Once "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. Id. at 17, 532 N.E.2d 1211.

Although summary judgment is seldom sought or granted in negligence cases, it may be appropriate in some instances. See Manning v. Nobile, 411 Mass. 382, 388, 582 N.E.2d 942 (1991). For example, where the party who does not have the burden of proof at trial establishes that the other party could not prove an essential element of its claim, summary judgment may be appropriate. See ibid.

"Negligence ... is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence commensurate with the requirement of the duty at the moment imposed by the law." Altman v. Aronson, 231 Mass. 588, 591, 121 N.E. 505 (1919). "In any negligence cause of action, there are four elements on which plaintiffs must adduce adequate evidence to prevail. Plaintiffs must show: (1) a legal duty owed by defendant to plaintiff; (2) a breach of that duty; (3) proximate or legal cause; and (4) actual damage or injury." Jorgensen v. Massachusetts Port Authy., 905 F.2d 515, 522 (1st Cir.1990).

The cases cited by the plaintiff as permitting recovery under negligence principles for a decedent's suicide fit into two distinct fact patterns, neither of which is present here: either (1) the defendant's negligence was the cause of the decedent's uncontrollable suicidal impulse, see Daniels v. New York, New Haven, and Hartford R.R. Co., 183 Mass. 393, 397-400, 67 N.E. 424 (1903); Freyermuth v. Lutfy, 376 Mass. 612, 620, 382 N.E.2d 1059 (1978) ("the judge was warranted in finding that [the decedent], on account of mental derangement precipitated by the [motor vehide] accident [caused by the defendant], was incapable...