Filed: Jul. 20, 2005
Latest Update: Feb. 21, 2020
Summary: , Mark J. Grady, Assistant United States Attorney, with whom, Michael J. Sullivan, United States Attorney, were on brief, for, appellee.1, The disputed facts limned at pages 20-21 of appellant's brief, are simply insubstantial and irrelevant to the district court's, ruling.-5-, Mass. App.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2561
MARTHA and PAUL HARTEL,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
D&D ENTERPRISES, INC. and MCKINNELL, MCKINNELL AND TAYLOR, INC.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Torruella, Circuit Judge,
Hill,* Senior Circuit Judge,
and Howard, Circuit Judge.
James M. Burke, with whom Law Offices of James M. Burke was on
brief, for appellants.
Mark J. Grady, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.
July 20, 2005
*
Of the Eleventh Circuit, sitting by designation.
Per Curiam. This is a tort action against the United
States pursuant to the provisions of the Federal Tort Claims Act
("FTCA"), 28 U.S.C. ยงยง 1346(b), 2671-2780, in accordance with which
"[t]he United States shall be liable, respecting . . . tort claims,
in the same manner and to the same extent as a private individual
under like circumstances . . . ." The district court granted
summary judgment in favor of the United States, and plaintiffs
Martha and Paul Hartel appeal therefrom. For the reasons stated in
this opinion we affirm the decision of the district court.
Summary judgment is appropriate when "there is no genuine
issue as to any material fact and the moving party is entitled to
a judgment as a matter of law." Fed. R. Civ. P. 56(c). Review of
a grant of summary judgment is de novo, with the reviewing court
looking at "the record and ask[ing] if a fact finder could
rationally reach a different conclusion from that of the [district]
court." Nicolo v. Phillip Morris Inc., 201 F.3d 29, 33 (1st Cir.
2000). The evidence is viewed in the light most favorable to the
nonmoving party.
Id. Massachusetts negligence law is the
substantive law that governs this case. Goldman v. United States,
790 F.3d 181, 183 (1st Cir. 1986).
The questions raised by the Hartels on appeal require us
to first determine whether the district court relied on any
material fact genuinely in controversy in reaching its decision.
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The material facts found by the district court are as
follows. The United States Postal Service ("USPS") operates a post
office in Falmouth, Massachusetts. On or about September 1995, as
part of a renovation project of the premises, the USPS installed
new ornamental rails at the front entrance to the building,
adjacent to which were also installed railings for persons with
disabilities. As stated by the district court:
The ornamental handrail was the taller of the
two and ended at the last tread on the stairs.
The handicap handrail extended approximately
two feet beyond the ornamental handrail. Both
handrails were painted black.
Hartel v. United States, No. 02-10101, slip op. at 4 (D. Mass.
Oct. 12, 2004). This description accurately depicts the handrails
shown in the photographs submitted with the United States' motion
for summary judgment, which Mrs. Hartel agreed depict the site
accurately. See id. at 9, n.3. These photographs show that the
handrails appear open to the public view to anyone who transits the
sidewalk or the stairway leading into the post office, or enters
the stairway from the adjacent flagstone path.
On June 25, 1999, Mrs. Hartel visited the Falmouth Post
Office, as she had done on at least twenty occasions in the year
prior to that date. On at least ten of those occasions, she had
walked in and out of the post office entrance, using the stairway
where the two sets of railings were located. On the other ten
occasions she walked within fifteen feet of this area to free-
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standing mailboxes. Although Mrs. Hartel was "sure [she] did"
notice that additional handrails had been installed, she did not
"consciously think about it." Id. at 5.
On the day in question, after entering the post office
building following a path up the middle of the renovated stairway,
Mrs. Hartel mailed some letters, and left down the same stairway
carrying approximately twenty legal and standard sized envelopes,
which she held with both hands. As she got to the end of the higher
ornamental handrail, Mrs. Hartel testified, she was not aware of
the lower handicap rail. As she turned right from the stairway she
fell. After falling to the ground, Mrs. Hartel turned and saw that
the handicap handrail extended beyond the ornamental hand rail and,
thus, concluded that she had fallen over the handicap handrail. As
a result of the fall, Mrs. Hartel suffered serious injuries,
breaking a hip and having to undergo two operations.
The above facts1 are sufficient to sustain the ruling of
the district court which is based on settled Massachusetts law
regarding open and obvious conditions. See O'Sullivan v. Shaw, 420
Mass. 201, 204-06 (Mass. 2000)("[I]t is well established in our law
of negligence that a land owner's duty to protect lawful visitors
1
The "disputed facts" limned at pages 20-21 of appellant's brief
are simply insubstantial and irrelevant to the district court's
ruling. A fact is "material" if it "has the potential to alter the
outcome of the suit under governing law if the dispute over it is
resolved favorably to the nonmovant." Smith v. F.W. Morse & Co.,
76 F.3d 413, 428 (1st Cir. 1996). None of the "disputed facts"
alleged by appellant fit the bill.
-4-
against dangerous conditions on his property ordinarily does not
extend to dangers that would be obvious to persons of average
intelligence."); Toubiana v. Priestly, 402 Mass. 84, 89 (Mass.
1988) ("Ordinarily, a landowner has no duty to protect lawful
visitors on his property from risks that would be obvious to
persons of average intelligence.").
Both handrails, in whatever condition they were in, were
obviously apparent to any passerby and thus, the land owner is
relieved of any duty of care as to risks arising therefrom. In the
case of such obvious conditions there is neither a duty to warn nor
to maintain a safe premise because there is simply no duty of care.
O'Sullivan, 420 Mass. at 206 ("the open and obvious danger rule
. . . operates to negate the existence of a duty of care"); see
also id. at 204 (finding no duty to "protect" visitors against
obvious danger of diving into shallow end of swimming pool);
Toubiana, 402 Mass. at 88-89 (noting duty to maintain elevator in
safe condition, but finding no duty to "protect" passenger from
obvious danger of using elevator to transport tall items protruding
through carriage ceiling). Nor is the "open and obvious" doctrine
limited to only inherently dangerous conditions, as is claimed by
appellants. See, e.g., Toubiana,
402 Mass. 84 (riding an
elevator); Young v. Atlantic Richfield Co.,
400 Mass. 837 (1987)
(filling one's gas tank); Del Sesto v. Condakes,
341 Mass. 146
(Mass. 1960) (walking through a doorway); Polak v. Whitney, 21
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Mass. App. Ct. 349 (Mass. App. Ct. 1985) (parking a car in the
street).
The opinion of the district court is affirmed.
Affirmed.
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