                 Not For Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3


           United States Court of Appeals
                        For the First Circuit
No. 04-2561

                        MARTHA and PAUL HARTEL,
                        Plaintiffs, Appellants,

                                       v.

                       UNITED STATES OF AMERICA,
                          Defendant, Appellee.


D&D ENTERPRISES, INC. and MCKINNELL, MCKINNELL AND TAYLOR, INC.,
                           Defendants.



           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
             [Hon. Nancy Gertner, U.S. District Judge]


                                    Before

                       Torruella, Circuit Judge,
                     Hill,* Senior Circuit Judge,
                      and Howard, Circuit Judge.


     James M. Burke, with whom Law Offices of James M. Burke was on
brief, for appellants.
     Mark J. Grady, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, were on brief, for
appellee.


                               July 20, 2005




*
    Of the Eleventh Circuit, sitting by designation.
              Per Curiam.          This is a tort action against the United

States pursuant to the provisions of the Federal Tort Claims Act

("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2780, in accordance with which

"[t]he United States shall be liable, respecting . . . tort claims,

in the same manner and to the same extent as a private individual

under like circumstances . . . ."                    The district court granted

summary judgment in favor of the United States, and plaintiffs

Martha and Paul Hartel appeal therefrom. For the reasons stated in

this opinion we affirm the decision of the district court.

              Summary judgment is appropriate when "there is no genuine

issue as to any material fact and the moving party is entitled to

a judgment as a matter of law." Fed. R. Civ. P. 56(c).                       Review of

a grant of summary judgment is de novo, with the reviewing court

looking      at    "the    record    and   ask[ing]    if    a   fact    finder    could

rationally reach a different conclusion from that of the [district]

court."      Nicolo v. Phillip Morris Inc., 201 F.3d 29, 33 (1st Cir.

2000). The evidence is viewed in the light most favorable to the

nonmoving         party.     Id.      Massachusetts      negligence       law    is    the

substantive law that governs this case.                Goldman v. United States,

790 F.3d 181, 183 (1st Cir. 1986).

              The questions raised by the Hartels on appeal require us

to   first    determine      whether       the    district   court      relied    on   any

material fact genuinely in controversy in reaching its decision.




                                            -2-
           The material facts found by the district court are as

follows. The United States Postal Service ("USPS") operates a post

office in Falmouth, Massachusetts.            On or about September 1995, as

part of a renovation project of the premises, the USPS installed

new   ornamental    rails    at   the   front   entrance   to   the   building,

adjacent to which were also installed railings for persons with

disabilities.      As stated by the district court:

           The ornamental handrail was the taller of the
           two and ended at the last tread on the stairs.
           The handicap handrail extended approximately
           two feet beyond the ornamental handrail. Both
           handrails were painted black.

Hartel v. United States, No. 02-10101, slip op. at 4 (D. Mass.

Oct. 12, 2004).     This description accurately depicts the handrails

shown in the photographs submitted with the United States' motion

for summary judgment, which Mrs. Hartel agreed depict the site

accurately.     See id. at 9, n.3.        These photographs show that the

handrails appear open to the public view to anyone who transits the

sidewalk or the stairway leading into the post office, or enters

the stairway from the adjacent flagstone path.

           On June 25, 1999, Mrs. Hartel visited the Falmouth Post

Office, as she had done on at least twenty occasions in the year

prior to that date.         On at least ten of those occasions, she had

walked in and out of the post office entrance, using the stairway

where the two sets of railings were located.               On the other ten

occasions she walked within fifteen feet of this area to free-


                                        -3-
standing mailboxes.    Although Mrs. Hartel was "sure [she] did"

notice that additional handrails had been installed, she did not

"consciously think about it."    Id. at 5.

           On the day in question, after entering the post office

building following a path up the middle of the renovated stairway,

Mrs. Hartel mailed some letters, and left down the same stairway

carrying approximately twenty legal and standard sized envelopes,

which she held with both hands. As she got to the end of the higher

ornamental handrail, Mrs. Hartel testified, she was not aware of

the lower handicap rail.   As she turned right from the stairway she

fell.   After falling to the ground, Mrs. Hartel turned and saw that

the handicap handrail extended beyond the ornamental hand rail and,

thus, concluded that she had fallen over the handicap handrail. As

a result of the fall, Mrs. Hartel suffered serious injuries,

breaking a hip and having to undergo two operations.

           The above facts1 are sufficient to sustain the ruling of

the district court which is based on settled Massachusetts law

regarding open and obvious conditions. See O'Sullivan v. Shaw, 420

Mass. 201, 204-06 (Mass. 2000)("[I]t is well established in our law

of negligence that a land owner's duty to protect lawful visitors


1
   The "disputed facts" limned at pages 20-21 of appellant's brief
are simply insubstantial and irrelevant to the district court's
ruling. A fact is "material" if it "has the potential to alter the
outcome of the suit under governing law if the dispute over it is
resolved favorably to the nonmovant." Smith v. F.W. Morse & Co.,
76 F.3d 413, 428 (1st Cir. 1996). None of the "disputed facts"
alleged by appellant fit the bill.

                                 -4-
against dangerous conditions on his property ordinarily does not

extend to dangers that would be obvious to persons of average

intelligence."); Toubiana v. Priestly, 402 Mass. 84, 89 (Mass.

1988) ("Ordinarily, a landowner has no duty to protect lawful

visitors on his property from risks that would be obvious to

persons of average intelligence.").

          Both handrails, in whatever condition they were in, were

obviously apparent to any passerby and thus, the land owner is

relieved of any duty of care as to risks arising therefrom.       In the

case of such obvious conditions there is neither a duty to warn nor

to maintain a safe premise because there is simply no duty of care.

O'Sullivan, 420 Mass. at 206 ("the open and obvious danger rule

. . . operates to negate the existence of a duty of care"); see

also id. at 204 (finding no duty to "protect" visitors against

obvious danger of diving into shallow end of swimming pool);

Toubiana, 402 Mass. at 88-89 (noting duty to maintain elevator in

safe condition, but finding no duty to "protect" passenger from

obvious danger of using elevator to transport tall items protruding

through carriage ceiling).    Nor is the "open and obvious" doctrine

limited to only inherently dangerous conditions, as is claimed by

appellants.    See,   e.g.,   Toubiana,   402   Mass.   84   (riding   an

elevator); Young v. Atlantic Richfield Co., 400 Mass. 837 (1987)

(filling one's gas tank); Del Sesto v. Condakes, 341 Mass. 146

(Mass. 1960) (walking through a doorway); Polak v. Whitney, 21


                                 -5-
Mass. App. Ct. 349 (Mass. App. Ct. 1985) (parking a car in the

street).

           The opinion of the district court is affirmed.

           Affirmed.




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