Opinion
10-P-2015
01-03-2012
JOHN LEVEY v. WILDWOOD REALTY ASSOCIATES, LLC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, who alleges injuries as a result of slipping and falling on ice in the parking lot of premises owned by the defendant (Wildwood), appeals from a summary judgment dismissing his complaint. We affirm.
It is undisputed that Wildwood leased the premises, including the parking lot, to the plaintiff's employer, American Food and Vending Corporation. Pursuant to that lease, which is contained in the summary judgment record, the lessee, alone, had the duty to maintain the property and, specifically, to remove snow and ice, and Wildwood had no right to enter the premises for this purpose except after reasonable notice to the lessee.
Although the plaintiff claims that the lease was not properly authenticated, he did not file a motion to strike it, see Wooster v. Abdow Corp., 46 Mass. App. Ct. 665, 666 (1999), and, in any event, does not go so far as to dispute its genuineness. See Sullivan v. Worcester, 18 Mass. App. Ct. 360, 363 (1984).
There being no evidence that Wildwood monitored the parking lot, provided notice of intent to enter the premises, or otherwise knew of an unsafe condition and had the opportunity and sufficient control to eliminate it, Wildwood's motion properly was allowed on the ground that it owed no duty of care to the plaintiff. See Humphrey v. Byron, 447 Mass. 322, 328-329 (2006), reaffirming the rule that a lessor of commercial premises is liable in tort for personal injuries only if the lessor contracted to make repairs and made them negligently, or had some control over the area in which the injurious defect was located. Contrary to the plaintiff's position, nothing in Papadopoulos v. Target Corp., 457 Mass. 368 (2010), changes the law in this respect.
There is no merit to the plaintiff's argument that a remand is necessary to flesh out the division of responsibilities between lessor and lessee. Once Wildwood produced evidence (the lease) that it was the lessee's obligation to maintain the premises, including the parking lot, Wildwood negated a necessary element of the plaintiff's proof, i.e., that Wildwood owed him a duty of reasonable care. To avoid summary judgment, it then was incumbent upon the plaintiff to submit countervailing materials establishing at least a factual dispute on this point. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). This he did not do.
Judgment affirmed.
By the Court (Kafker, Cohen, & Katzmann, JJ.),