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22-P-716 Appeals Court

JOAN ARRUDA vs. NEWPORT CONSTRUCTION CORPORATION.

No. 22-P-716.

Middlesex. February 14, 2023. – July 21, 2023.

Present: Henry, Shin, & Hodgens, JJ.

Negligence, Duty to prevent harm, Causation. Way, Public:

defect. Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on 

April 23, 2018.

The case was heard by Christopher K. Barry-Smith, J., on a 

motion for summary judgment.

Robert I. Feinberg (Colleen M. Santora also present) for 

the plaintiff.

Steven C. Kennedy for the defendant.

HODGENS, J. While walking into a crosswalk with her 

granddaughter at dusk, the plaintiff caught her foot on a 

protruding granite block, fell, and sustained injuries. This 

granite block formed part of a decorative margin for the 

crosswalk and should have been flush with the surrounding 
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roadway, but the defendant construction contractor caused the 

margin to protrude above the roadway by one-half inch. The 

defendant intended to repair the defect months later when 

applying the final course of asphalt but provided no warning to 

pedestrians at the time of the incident. After the plaintiff 

filed a complaint alleging negligence, a Superior Court judge

allowed the defendant's motion for summary judgment and 

concluded that the one-half inch defect was "too minor or 

insubstantial" to support a negligence claim. We vacate the 

judgment and remand for further proceedings.

Background. We summarize the facts in the light most 

favorable to the plaintiff, Joan Arruda, as the party opposing 

summary judgment. See FBT Everett Realty, LLC v. Massachusetts 

Gaming Comm'n, 489 Mass. 702, 704 (2022). See Mass. R. Civ. 

P. 56 (c), as amended, 436 Mass. 1404 (2002). Newport 

Construction Corporation (Newport), the defendant construction 

contractor, reconstructed four streets in Cambridge, including 

Thorndike Street. Prior to September 8, 2017, Newport excavated 

the existing asphalt roadway and cobblestone base of Thorndike 

Street, laid a new gravel base, and covered the base with a 

"binder" course of asphalt. This binder course left a onequarter to one-half inch difference in elevation between the 

granite margin of the crosswalk and the roadway surface. A 

passenger in a vehicle would "barely feel" the protrusion when 
3

driving over the crosswalk and approaching the stop sign at the 

intersection. Newport planned to apply in the spring a final 

course of asphalt that would make the roadway surface flush with 

the protruding granite margin of the crosswalk.

At about 6 P.M., on September 8, 2017, Arruda walked 

through Cambridge with her granddaughter to attend a 

neighborhood festival. As they diagonally crossed Thorndike 

Street into the crosswalk, Arruda caught her foot on the 

protruding granite margin, fell, and sustained injuries. At the 

time of the incident, the granite protrusion was not highlighted 

by any traffic cones, warning signs, or paint.

Arruda filed a complaint in the Superior Court and claimed 

that Newport negligently maintained the roadway and walkway and 

failed to provide a warning of the defect. A Superior Court 

judge allowed Newport's motion for summary judgment. The judge 

concluded, "In the context of resurfacing a street, that onehalf inch difference in elevation is sufficiently small that a 

reasonable person -- namely, the street contractor -- would not 

anticipate injury and guard against it."

Discussion. "Ordinarily, 'summary judgment is not an 

appropriate means to resolve negligence cases, because usually 

the question of negligence is one of fact.'" Doe v. Boston Med. 

Ctr. Corp., 88 Mass. App. Ct. 289, 291 (2015), quoting Roderick 

v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994). A viable 
4

negligence claim consists of four elements: "[(1)] [the] 

defendant owes a duty of reasonable care to the plaintiff, 

[(2)] the defendant committed a breach of that duty, [(3)] the 

plaintiff suffered damage, and [(4)] a causal relationship 

existed between the breach of duty and the damage." HeathLatson v. Styller, 487 Mass. 581, 584 (2021). While the 

existence of a duty is a question of law, the remaining elements 

are considered "to be the special province of the jury." Jupin

v. Kask, 447 Mass. 141, 146 (2006). "[A] party moving for 

summary judgment in a case in which the opposing party will have 

the burden of proof at trial is entitled to summary judgment if 

he demonstrates . . . that the party opposing the motion has no 

reasonable expectation of proving an essential element of that 

party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 

706, 716 (1991). We review the judge's summary judgment 

decision "de novo." Kennedy v. Abramson, 100 Mass. App. Ct. 

775, 777 (2022).

Newport has not demonstrated that Arruda has no reasonable 

expectation of proving an essential element of her negligence 

case. The record shows that Newport was a contractor in the 

process of reconstructing Thorndike Street. As a matter of law, 

Newport owed a duty of care to pedestrians, like Arruda, who 

walked across that street and encountered the construction 

defect. See Meyer v. Veolia Energy N. Am., 482 Mass. 208, 209 
5

(2019) (contractor that "created a particular defect" in roadway 

subject to negligence claim of injured bicyclist); Seltzer v. 

Amesbury & S. Gas Co., 188 Mass. 242, 244 (1905) (liability was 

based on contractor's act of "digging a pit and leaving it 

insufficiently or improperly filled, thus creating an 

obstruction to public travel"). Viewed in a light most 

favorable to Arruda, the record also contained factual support 

for the remaining elements of her negligence claim. Newport 

knew about the protruding "lip" of the granite margin and 

planned to eliminate it in the spring through the application of 

a final course of asphalt that would make the roadway surface 

flush with the granite. At the time of the incident, the 

granite protrusion lacked any traffic cones, warning signs, or 

paint. As Newport's construction manager put it, he believed 

paint was not necessary because the protrusion was "not in a 

pedestrian path of travel." Arruda and her granddaughter 

diagonally crossed Thorndike Street into the crosswalk where 

Arruda caught her foot on the protruding granite margin, fell, 

and sustained injuries. Jurors need to sift through these facts 

and weigh the evidence to decide whether Newport's conduct 

amounted to a breach of its duty of care and caused the injury 

to Arruda. See Regan v. John J. Amara & Sons Co., 348 Mass. 

734, 737 (1965) ("jury could have found that [contractor] knew 

or ought to have known of the defective condition of the street 
6

and was negligent in failing to take adequate precautions"); 

Scholl v. New England Power Serv. Co., 340 Mass. 267, 270 (1960) 

(jury question presented where contractor "fail[ed] to warn 

travellers of the excavation" in city street).

Contrary to Newport's claim, the height of the defect, 

standing alone, is not determinative of the negligence claim as 

a matter of law. Newport contends that the half-inch protrusion 

of the granite margin above the binder layer of asphalt was "too 

minor or insubstantial to support a negligence claim." Rather 

than focusing exclusively on the height of the protrusion, the 

"necessary inquiry is whether the defect is so minor or 

insubstantial that a reasonable person would not have 

anticipated injury and guarded against it." Doherty v. Belmont, 

396 Mass. 271, 275 (1985). This broader inquiry, under the 

reasonable person standard, focuses not just on the height of 

the defect but also on its origin, location, and duration. 

Properly focused, the inquiry shows that Newport's application 

of the binder course of asphalt to the roadway surface left the 

protrusion (or "lip") of the granite margin along the edge of 

the crosswalk. According to the construction manager, a final 

layer of asphalt could have been applied over the binder layer 

"the next day," but "the scope of the project" called for 

leaving the protrusion in place for a "longer duration" until 

the spring. In the interim, the protrusion lacked any warning 
7

of its unfinished, defective condition at the time of Arruda's 

injury. Based on the record here, a jury could conclude that 

Newport was aware,1 or should have been aware, of the defect and 

should have anticipated a potential injury, but "nonetheless 

failed to take steps to eliminate this risk" through adequate 

warnings or other remedial action. Id. Whether such a 

conclusion should ultimately be drawn is a factual question 

within "the special province of the jury." Jupin, 447 Mass. at 

146.

Newport's creation of the protruding granite margin and 

knowledge of the defect distinguish this case from those in 

which liability cannot be imposed for insignificant conditions. 

See Pastrick v. S.S. Kresge Co., 288 Mass. 194, 195, 197 (1934) 

("no defect and no unusual danger" where "sum of the width and 

height in the stairway in question gave 'an abnormally high 

cadence' to the pacing of an ordinary person"); Rosenthal v. 

Central Garage of Lynn, Inc., 279 Mass. 574, 575 (1932) (shiny 

and smooth condition of stair treads that was "merely as the 

result of wear" did not constitute defect that rendered stairs 

unsafe); Douglas v. Shepard Norwell Co., 217 Mass. 127, 130 

(1914) (loose carpet and gradual, slight ridge did not 

1 The construction manager also testified that the

protruding granite "probably was painted" at some time, but 

likely wore off by the time of the incident.
8

constitute defect "which the defendant ought to have 

discovered"); Ware v. Evangelical Baptist Benevolent & 

Missionary Soc'y of Boston, 181 Mass. 285, 286-287 (1902) (step 

from hallway into adjoining room "cannot be regarded as 

defective"); Jennings v. Tompkins, 180 Mass. 302, 302-303 (1902) 

("there is not a defect" from nail protruding 3/16 of inch from 

step due to natural wear).

The present case is also distinguishable from cases cited 

by Newport involving municipal defendants. Municipal defendants 

are aided by a statute that limits liability for injuries 

resulting from defects in public ways. See G. L. c. 84, § 15 

(road-defect statute). That statute embodies the public policy 

that municipalities "should not be liable for slight or trivial 

imperfections in public ways which might be caused by weather 

conditions or traffic patterns." Doherty, 396 Mass. at 275. 

Newport, however, is not a municipality subject to the roaddefect statute, and the alleged defect here was caused by 

Newport, not weather conditions or traffic patterns. Contrast 

Galante v. Brockton, 305 Mass. 480, 481 (1940) (city not liable 

for injury to pedestrian who fell due to "slight sinking and 

tipping of the curb" away from the sidewalk where requirement of 

"perfect alignment would bear heavily upon municipalities"); 

Vellante v. Watertown, 300 Mass. 207, 208 (1938) (town not 

liable for injury to pedestrian who stumbled on tilting sidewalk 
9

perhaps caused by "freezing and thawing of the ground" where 

"actionable defect would cast an undue burden upon 

municipalities").2

Newport asks us to extend the road-defect statute and 

standards of limited municipal liability to its own conduct 

because the burden placed on a contractor will inevitably be 

passed along to a municipality through a higher contract price. 

We decline to do so. The Supreme Judicial Court has limited the 

reach of the road-defect statute, and cases imposing liability 

under it, to "the county, city, town, or person required to 

perform the public duty of maintaining the way and not to a 

private corporation that causes a defect in the way, even where 

the private entity has been authorized by a governmental entity 

to perform a particular function causing a defect in the way." 

Meyer, 482 Mass. at 218. Stated another way, the road-defect 

2 Other cases cited by Newport are also inapposite. See 

Swenson v. Boston, 317 Mass. 295, 295-296 (1944) (city not 

liable for injury to pedestrian who tripped on streetcar rail 

protruding two inches above roadway where actionable defect 

would "cast an undue burden on municipalities"); Rowett v. North 

Adams, 288 Mass. 50, 50-51 (1934) (city not liable for injury to 

pedestrian who stepped in hole while crossing paved street where 

testimony did not describe the "area, depth, or other features 

of the so-called 'hole'"); Beaumier v. Heath, 282 Mass. 312, 

313, 315-316 (1933) (town not liable for injury to vehicle 

passenger caused by hole in cobblestone road where town lacked 

reasonable notice of defect and opportunity to repair); Newton

v. Worcester, 174 Mass. 181, 188 (1899) (city not liable for 

injury to pedestrian who fell on brick sidewalk where varying, 

smooth depressions up to two inches did not render sidewalk 

unsafe).
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statute "applies only to those entities that have a public duty 

to maintain the way, not to private parties causing particular 

defects." Id. at 221.

Conclusion. Summary judgment is sometimes but "rarely" 

warranted in negligence cases, which usually present questions 

of fact for the jury. Zavras v. Capeway Rovers Motorcycle Club, 

Inc., 44 Mass. App. Ct. 17, 21 (1997). This is not such a rare 

case. The judgment for Newport is vacated, and the matter is 

remanded to the Superior Court for further proceedings 

consistent with this opinion.

So ordered.