Opinion
22-P-47
08-26-2022
GAIL WEISBERG v. PARSONS HILL MA SNF LLC & another. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Gail Weisberg, appeals from a judgment entered by a Superior Court judge granting the defendants' motion for summary judgment on her claims for negligence. Concluding that the plaintiff's injury was not foreseeable to the defendants, we affirm.
1. Background.
"We recite the material facts in the light most favorable to the nonmoving party." Docos v. John Moriarty & Assocs., 78 Mass.App.Ct. 638, 639 (2011). Defendant Parsons Hill MA SNF LLC (Parsons Hill) was a client of Mobile Medical, for whom the plaintiff worked as a dental hygienist. On July 10, 2018, the plaintiff and another hygienist reported to Parsons Hill to treat residents. It was hot outside -- approximately eighty to eighty-five degrees -- and warm in the building. The plaintiff normally worked in a room in the basement that had air conditioning and a window. On the day of the incident, however, this room was inaccessible, as the elevator in the building was out of service. Parsons Hill instructed the plaintiff to treat patients in "the tub room" instead.
When the plaintiff and her colleague got to the tub room, it was "extremely hot." The plaintiff twice asked for a fan, but none was provided. After waiting for a fan for forty-five minutes, the plaintiff felt that she needed to begin treating patients and could not do so given the temperature in the room. The room had a window six feet off the ground. From the ground, the plaintiff could not reach it. To reach the window, the plaintiff climbed on a chair. As she stood on the chair, the window would not budge. As she tried to climb down, the plaintiff fell off the chair, causing injuries for which she sued.
2. Standard of review.
In evaluating the allowance of a motion for summary judgment, "we review de novo whether there were genuine issues of material fact." Cellco Partnership v. Peabody, 98 Mass.App.Ct. 496, 500 (2020). We ask "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass.App.Ct. 173, 177 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
3. Negligence.
"A viable negligence claim requires a showing that a defendant owes a duty of reasonable care to the plaintiff, the defendant committed a breach of that duty, the plaintiff suffered damage, and a causal relationship existed between the breach of duty and the damage." Heath-Latson v. Styller, 487 Mass. 581, 584 (2021). "[T]he existence of a duty is a question of law." Navarro v. Burgess, 99 Mass.App.Ct. 466, 469 (2021).
An actor "has a duty to exercise reasonable care to avoid physical harm ... to all persons who are foreseeably endangered by his conduct." Commerce Ins. Co. v. Ultimate Livery Serv., 452 Mass. 639, 647-648 (2008), quoting Jupin v. Kask, 447 Mass. 141, 147 (2006) . This duty, however, encompasses only those "risks [that] make the conduct unreasonably dangerous," Commerce Ins. Co., supra at 648, quoting Jupin, supra, and that were "recognizable or foreseeable to the actor." Navarro, 99 Mass.App.Ct. at 470, quoting Jupin, supra. Accordingly, "in defining the scope of a duty of care," we examine "the circumstances . . . based on the reasonable foreseeability of the harm" that occurred. Adams v. Congress Auto Ins. Agency, Inc., 90 Mass.App.Ct. 761, 765-766 (2016), quoting Whittaker v. Saraceno, 418 Mass. 196, 199 (1994). "Whether a consequence is foreseeable is measured by an objective standard." Meridian at Windchime, Inc. v. Earth Tech, Inc., 81 Mass.App.Ct. 128, 133 (2012).
Here, our analysis turns on whether it was reasonably foreseeable to the defendants that a contractor assigned to a hot room would stand on a chair to open a window and injure himself or herself in the process. There can be little question that the defendants owed the plaintiff a duty to provide a safe environment for the provision of dental services. See Heath-Latson, 487 Mass. at 584. The plaintiff has presented a genuine issue of material fact whether the defendants breached this duty by failing to cool and ventilate the room adequately. Nonetheless, the plaintiff's claim for negligence fails on foreseeability.
Although the plaintiff was injured, it was not by the high temperature or lack of ventilation in the room. See Lewis v. Barnstable, 399 Mass. 1007, 1008 (1987) (town's alleged negligence in issuing work permit was not proximate cause of plaintiff's injury where "plaintiff was not injured while using laundry machinery"). Accord Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 345 (1928) (claim for negligence will not lie simply because "there has been damage to [one's] person"). Rather, she was injured by the fall. "[T]here was nothing in the situation to suggest to the most cautious mind" that the temperature of the room would cause the plaintiff to fall off a chair and break her hip. Palsgraf, supra. Contrast Docos, 78 Mass.App.Ct. at 640 (plaintiff raised issue as to defendant's duty to remedy construction debris where sheetrock that plaintiff was told to move fell on plaintiff, and, because of construction debris, plaintiff could not "evade it" or "free himself"). The plaintiff cannot show that it was reasonably foreseeable to the defendants that a contractor would seek to open a window to cool down the room, need assistance to reach the window, use a chair as a stand-in for a ladder, become unsteady on the chair, fall off it, and hurt herself. We conclude, therefore, that the defendants' duty of care did not encompass the risk that led to the plaintiff's injury. See Lanza v. EQR-Lincoln Lawrence, LLC, 69 Mass.App.Ct. 2 0 6, 210 (2007) (not reasonably foreseeable to company that employee would injure himself while "meddling with the sheetrock" that blocked his path). The motion judge properly allowed the defendants' motion for summary judgment.
Because we conclude that the plaintiff's injury was not foreseeable, we need not reach the other grounds raised by the motion judge in her decision and by the parties on appeal.
Judgment affirmed.
The panelists are listed in order of seniority.