Roderick v. Brandy Hill Co.

• Decision Date: 14 April 1994
• Docket Number: No. 93-P-286,93-P-286
• Citation: 631 N.E.2d 559,36 Mass.App.Ct. 948
• Court: Appeals Court of Massachusetts
• Parties: Keith RODERICK 1 & another 2 v. BRANDY HILL CO. & others. 3

Page 559

631 N.E.2d 559

36 Mass.App.Ct. 948

Keith RODERICK ¹ & another ² v. BRANDY HILL CO. & others. ³

No. 93-P-286.

Appeals Court of Massachusetts.

April 14, 1994.

Adelio DeMiranda, Boston, for plaintiffs.

Brian P. Burke, Boston, for Brandy Hill Co. & others.

RESCRIPT.

The minor plaintiff, Keith Roderick (Keith), was injured on a playground of an apartment complex belonging to the defendant, Brandy Hill Co. (Brandy), and managed by the defendant, State Street Development Management Corporation (State). Keith, represented by his mother, and his mother ⁴ filed suit in the Superior Court against the defendants, Brandy and State, on the ground that the playground was negligently maintained by them. Brandy and State filed a motion for summary judgment. From the allowance of summary judgment for Brandy and State, the plaintiffs filed this appeal. We affirm.

We summarize those facts which are not in dispute. The plaintiffs were tenants at the apartment complex known as Brandy Hill Estates. Brandy Hill Estates was owned by Brandy and managed by State. There was a playground located in the rear of the plaintiffs' apartment on the premises of Brandy Hill Estates. The playground was not supervised, was not surrounded by a fence, and was adjacent to a wooded area.

Keith had gone to the playground to play with his older brother and some of his brother's friends. While playing near a swing, Keith was struck on the right eye by a stick thrown by a child at another child. The child had obtained the stick from the wooded area adjacent to the playground just before he struck Keith accidentally in the eye with it. Keith was four years old at the time of the accident.

Ordinarily, summary judgment is not an appropriate means to resolve negligence cases, because usually the question of negligence is one of fact. Mullins v. Pine Manor College, 389 Mass. 47, 56, 449 N.E.2d 331 (1983). Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 794, 507 N.E.2d 662 (1987). However, a judge may decide the issue as matter of law when no rational view of the evidence permits a finding of negligence. Mullins v. Pine Manor College, supra. Glick v. Prince Italian Foods, Inc., 25 Mass.App.Ct. 901, 902, 514 N.E.2d 100 (1987). We hold this to be such a case.

A residential landlord owes a duty to maintain its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. Young v. Garwacki, 380 Mass. 162, 169, 402 N.E.2d 1045 (1980). The plaintiffs contend that the defendants breached their duty by failing to keep the playground free of sticks, by failing to fence the playground area, and by failing to provide supervision for the playground. Here, the defendants submitted verified materials to the judge that the stick involved in the incident did not come from the playground area but from the wooded area adjacent to the playground and that the stick had been brought into the playground just moments before the child threw it. Even if we were to assume that the defendants had a duty to keep the playground area free of sticks, they cannot rationally be found to have breached that duty when the sticks had been brought onto the playground moments before the accident. A residential landlord cannot be held liable in negligence unless he knew or reasonably should have known of the defect and had a reasonable opportunity to repair or remove it. Id. at 170, 402 N.E.2d 1045.

We also conclude that in the circumstances of this case no rational view of the...