Anne M. Aylward (plaintiff), commenced this action on January 19, 1990, seeking recovery for personal injuries which she sustained as a result of a slip and fall in the defendants' driveway on January 24, 1987. The defendants, Ernest and Lillian McCloskey, moved for summary judgment
We set forth the relevant, undisputed facts of this case. In January of 1987, the plaintiffs and one of their children took a trip to Canada, leaving their two year old child with the defendants (plaintiff's parents) at their home in West Roxbury. On her return from Canada, the plaintiff picked up her child at the defendants' home. At that time, the plaintiff did not retrieve the child's carriage, so she left it in the defendants' garage. The plaintiff informed the defendant Lillian McCloskey that she would retrieve the carriage the following Saturday. Lillian McCloskey told the plaintiff that she and Ernest McCloskey would not be home that day, but that she would leave the garage door open. Thereafter, the McCloskeys went away to their house on Cape Cod.
Sometime during the week prior to January 24, 1987, light snow fell in the West Roxbury area and ice formed on the McCloskeys' driveway. The McCloskeys were unaware of the weather conditions in the Boston area.
On January 24, 1987, the plaintiff went to her parents' home to pick up the carriage. She proceeded down the driveway toward the garage. On her way, the plaintiff slipped on a natural accumulation of snow and ice and broke her leg.
1. Standard for summary judgment. "Rule 56 of the Massachusetts Rules of Civil Procedure. 365 Mass. 824 (1974), provides that a judge shall grant a party's motion for summary judgment if (1) there is no genuine issue of material fact, and (2) the moving party is entitled to a judgment as a matter of law" (citations omitted). Brunson v. Wall, 405 Mass. 446, 448 (1989). There is no genuine issue as to any material fact in this case. Consequently, we consider only whether the judge correctly concluded that the plaintiffs' claim must fail as a matter of law. Id.
The plaintiffs opposed the defendants' motion on the ground that the defendants owed a duty of reasonable care in the circumstances, which included the duty to take precautions to guard the plaintiff against the hazards created by ice and snow on their property. See Intriligator v. Boston, 18 Mass.App.Ct. 703, 705 (1984), S.C., 395 Mass. 489 (1985). See also Mounsey v. Ellard, 363 Mass. 693, 707 (1973). The plaintiffs argued that whether the defendants exercised reasonable care in the circumstances of this case is a question of fact for a jury, which would preclude the awarding of summary judgment in this case.
The judge held that, as a matter of law, the defendants could not be found to have been negligent in failing to remove a natural accumulation of snow and ice from their property. Gamere, supra at 362. Relying primarily on the Athas opinion, the judge agreed with the defendants that, under Massachusetts law, landowners are liable only for injuries caused by defects existing on their property and that the law does not regard the natural accumulation of snow and ice as an actionable property defect, if it regards such weather conditions as a defect at all. Athas, supra at 82.
The plaintiffs correctly state that the duty owed by the defendants in this case was a duty of reasonable care in the circumstances. Mounsey, supra. The plaintiffs wrongly conclude, however, that the defendants breached this duty by failing to remove a natural accumulation of snow and ice on their property. The duty of reasonable care "does not make landowners and occupiers insurers of their property nor does it impose unreasonable maintenance burdens." Mounsey, supra at 709.
There is no evidence in this case which would allow a jury to find that the defendants failed to exercise reasonable care in the circumstances and created a defective condition on their property. In the absence of such evidence, there is no evidence of negligence by the McCloskeys. Battista, supra. In the absence of evidence of negligence, it logically follows that there can be no liability to the plaintiffs. Mounsey, supra.