Construction company that hadn't leveled a crosswalk edge protruding a half inch in Cambridge will have to face suit by woman who tripped over it

The Massachusetts Appeals Court today reinstated a woman's lawsuit over the injuries she suffered when she tripped over a decorative crosswalk edge raised a half inch above the roadway on Thorndike Street in Cambridge.

A Middlesex Superior Court judge had tossed Joan Arruda's suit against the Newport Construction Corp. over her 2017 fall and $58,276.20 in medical expenses, essentially saying a half inch was no big deal, or, in legal terms, "too minor or insubstantial" to warrant a suit. But in its ruling today, the appeals court re-instated her action, saying whether the company was negligent is a question only a jury can decide.

The court summarized the case:

Newport Construction Corporation, 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 one-quarter 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 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 one-half inch difference in elevation is sufficiently small that a reasonable person -- namely, the street contractor -- would not anticipate injury and guard against it."

The court concluded that only a jury can determine that and said Arruda should be allowed to make her case to one - at which Newport can argue why it's not to blame for her injuries:

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. ...

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.