Jarvis et al v. Speedway LLC

Filing 53

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Speedway's motion for summary judgment, D. 33.(Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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RICHARD JOHNSON and
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CATHERINE JARVIS,
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Plaintiffs,
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v.
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Civil Action No. 16-11810
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SPEEDWAY, LLC,
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Defendant.
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)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

December 28, 2017

Introduction
Plaintiffs Richard Johnson (“Johnson”) and Catherine Jarvis (“Jarvis”) (collectively,

“Plaintiffs”) have filed this lawsuit against Defendant Speedway, LLC (“Speedway”) alleging
negligence and loss of consortium. D. 1-1. Defendants have moved for summary judgment. D.
33. For the reasons stated below, the Court DENIES the motion.
II.

Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material

fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect the
outcome of the suit under the applicable law.” Santiago–Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).
The movant bears the burden of demonstrating the absence of a genuine issue of material fact.
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Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations
or denials in her pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must,
with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a
trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano–
Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, that requires the production of evidence
that is ‘significant[ly] probative.’” Id. (quoting Anderson, 477 U.S. at 249) (alteration in original).
The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).
III.

Factual Background
The following facts, unless otherwise noted, are undisputed. In October 2014, Johnson

was employed by Brewer Petroleum as a delivery truck driver. D. 43, ¶ 5. On either October 7 or
8, 2014, a fact disputed by the parties, see D. 25, Johnson drove to a gas station operated by
Speedway in Whitinsville, Massachusetts (the “station”). D. 43, ¶ 6. Johnson’s responsibilities
included driving a truck carrying gasoline to the station, and filling its storage tanks. D. 43, ¶ 9.
The station’s storage tanks are located underground, under a flat concrete surface (the “concrete
pad”), which is raised between 1.5 and 2 inches from the surrounding asphalt. D. 43, ¶¶ 41-42.
While walking along his truck, Johnson stepped off the edge of the concrete pad and into an
adjacent puddle, causing him to stumble and roll his ankle. D. 43, ¶ 11. Plaintiffs, disputing in
part, add that Johnson testified that when he rolled his ankle, he felt a crunch in his knee and a pop
in his groin. Id. Johnson caught himself on the edge of his truck and prevented himself from
falling. D. 43, ¶ 12. After the storage tanks had been filled and Johnson completed his other
responsibilities, Johnson returned to his truck to inspect the puddle where he had tripped. D. 43,

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¶ 22. Johnson saw that the puddle was three to four feet in diameter and could feel a depression
in the asphalt at the bottom of the puddle. D. 43, ¶ 23.
IV.

Procedural History
Plaintiffs instituted this action in Middlesex Superior Court on June 21, 2016. D. 1-1.

Defendants removed the case to this Court on September 6, 2016. D. 1. The parties proceeded
with discovery. The Court heard the parties on the pending motions on November 9, 2017, and
took this matter under advisement. D. 52.
V.

Discussion
To support their negligence claim, Plaintiffs must show that Speedway owed a legal duty

to Johnson, that Speedway breached that duty, and that the breach was the proximate cause of
Johnson’s injury. Cohen v. Elephant Rock Beach Club, Inc., 63 F. Supp. 3d 130, 138 (D. Mass.
2014); see Davis v. Westwood Grp., 420 Mass. 739, 742-43 (1995). An owner or possessor of
land owes a common-law duty of reasonable care to any person lawfully on the premises. Davis,
420 Mass. at 743. Speedway’s arguments focus on whether it owed a duty to Johnson, and if it
did, the scope of that duty. As explained below, on this record, Plaintiffs’ negligence claim
survives summary judgment.
Plaintiffs have demonstrated that Speedway owed Johnson a duty of care as a business
invitee to “keep its premises in a reasonably safe condition for use according to the invitation or
to warn of dangers not obvious to the ordinary person and of which [t]he[y] would not be expected
to know, but which were known or should have been known to the defendant.” Rainka v. Shing,
2000 Mass. App. Div. 186 (Dist. Ct. 2000) (citing Benjamin v. O'Connell & Lee Mfg. Co., 334
Mass. 646, 649 (1956)).

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However, “[l]andowners are relieved of the duty to warn of open and obvious dangers on
their premises because it is not reasonably foreseeable that a visitor exercising (as the law
presumes) reasonable care for his own safety would suffer injury from such blatant hazards.”
O'Sullivan v. Shaw, 431 Mass. 201, 204, 211 (2000). “A danger is open and obvious if a
reasonable man ‘exercising ordinary perception, intelligence, and judgment’ would recognize the
danger.” Murgo v. Home Depot USA, Inc., 190 F. Supp. 2d 248, 251 (D. Mass. 2002) (quoting
Gallant v. Indian Ranch, Inc., 2002 Mass. App. Div. 12 (Dist. Ct. 2001)). Speedway contends that
the asphalt depression was an open and obvious hazard, but the Court on this record cannot say
that this defect was open and obvious, thereby obviating the duty. Johnson testifies that when he
tripped he stepped into a puddle, D. 43, ¶ 11, and on later inspection the same day of the accident
Johnson felt a depression in the asphalt covered by the puddle, D. 43, ¶¶ 22-23. But unlike “clearly
visible . . . . concentric grooves [] surround[ing]” a gas pump, Potvin, 2017 WL 3971096, at *6,
or the danger of “div[ing] headfirst into the shallow end of the defendants’ swimming pool,”
O’Sullivan, 431 Mass. at 207, the puddle’s concealment of the depression could be found to have
concealed the hazard. See Rainka v. Shing, 2000 Mass. App. Div. at 186 (explaining that
“[k]nowledge of the condition is a predicate to what is open and obvious,” and that knowledge is
evaluated in the circumstances when the plaintiff was injured); Tetreault v. Dupuis, 351 Mass.
710, 710 (1967); Rossley v. S. S. Kresge Co., 339 Mass. 654, 656 (1959).1

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Speedway also points to three opinions addressing raised concrete pads at gas stations from other
jurisdictions, all of which are also distinguishable because none contained any supplemental
hazards that augmented or concealed the hazard, like the puddle and asphalt depression. See
Steiner v. Parman Corp., No. 01A-01-9705-CV-00233, 1997 WL 749454, at *4 (Tenn. Ct. App.
Dec. 5, 1997); Circle K Convenience Stores, Inc. v. Ferguson, 556 So.2d 1207, 1208 (Fla. Dist.
Ct. App. 1990); Marriott v. Beaumont Properties, Inc., No. 190388, 1997 WL 33344682, at *1
(Mich. Ct. App. July 8, 1997) (per curiam opinion).
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The other cases upon which Speedway relies are also distinguishable. In Cranshaw v.
Cumberland Farms, Inc., 613 F. Supp. 2d 147, 149 (D. Mass. 2009), the plaintiff alleged a hazard
caused by the design and maintenance of a parking lot and the resulting natural accumulation of
ice. Id. However, in that case the court noted that its decision turned on the plaintiff’s failure to
offer any probative evidence beyond “his own affidavit and a series of photographs” that would
“suggest[] that the puddles resulted from improper design, drainage or grading.” Id. at 149-50
(citing Reardon, 63 Mass. App. Ct. at 45). The court noted expert evidence2 as an example of what
may have strengthened the plaintiff’s attempt to distinguish defective or unsafe conditions from
otherwise normal asphalt depressions and resulting puddles. Id. In Wexler v. Stanetsky Memorial
Chapel of Brookline, Inc., 2 Mass. App. Ct. 750, 751-52 (1975), the court determined that water
tracked into a funeral home by intermittent guests was a transient condition that could be
reasonably avoided by guests, and thus the defendant had not breached its duty. Id. However, in

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Plaintiffs’ expert David Doddridge (“Doddridge”) is in the construction and building inspection
industries, having received training in commercial building codes, and consults in civil litigation
relating to building code compliance, worker and other personal injuries, and construction
disputes. D. 44-3 at 1. Speedway contends that Doddridge is not a qualified expert, and that his
opinion on excessive variation and tripping hazard on the concrete and asphalt due to lack of
maintenance should not be considered as a part of the summary judgment record. Relying on his
experience performing assessments on gas stations to identify hazardous conditions, party
admissions, medical records and photographs from discovery in this case, as well as applicable
codes and standards from the American Society of Testing and Materials (“ASTM”) and
Occupation Safety and Health Administration (“OSHA”) “walking-working surfaces” regulations,
Doddridge concluded that Johnson was exposed to a variation in excess of these applicable
guidelines, augmented by a lack of maintenance and obscured by the puddle that had accumulated.
D. 44-2 at 6. These standards, which Doddridge deemed applicable, do not “connote[] [] statutory
or regulatory compulsion to conform with a particular standard. Rather, ‘applicability’ connotes
mere relevance.” Keller v. United States, 38 F.3d 16, 26 (1st Cir. 1994) (emphasis in original and
citations omitted). Speedway’s reliance on Potvin v. Speedway LLC, No. CV 14-10598-JGD,
2017 WL 3971096, at *6 (D. Mass. Sept. 8, 2017), in which the plaintiff’s expert had no relevant
experience relating to gas stations, and did not rely on relevant OSHA standards as an alternative
benchmark to ASTM standards, Id. at *3, is not persuasive. Accordingly, Doddridge’s expert
opinion is properly considered by the Court in the resolution of the pending motion.
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that case the court noted that the accumulation was minimal, and furthermore that the accumulation
was not accentuated by any unusual condition of the wet floor. Id. In this case, Plaintiffs have
offered evidence in support of their argument claiming the opposite: that both the raised edge and
depression were not usual or reasonable, and accordingly that when a puddle formed next to the
raised edge, it was hazard caused by a failure to maintain rather than a “transitory condition[] of
(the) premises[] due to normal use in wet weather.” Id. at 751 (quoting Lannagan v. Jordan Marsh
Co., 324 Mass. 540, 542 (1949)).
Furthermore, “the existence of an open and obvious danger will not necessarily relieve a
landowner of the duty to remedy that danger.” Dos Santos v. Coleta, 465 Mass. 148, 155 (2013).
Plaintiffs have raised theories of both failure to warn and failure to reasonably maintain. D. 1-1,
¶ 11. Plaintiffs have offered evidence to show: (i) the concrete pad’s raised edge, adjacent to the
asphalt depression, was an unreasonable hazard, as supported by Doddridge’s opinion, D. 44-2 at
3, 6; (ii) that a depression in the asphalt near the concrete pad was concealed by a large puddle, as
supported by witness testimony, D. 43-3 at 14-16, 26, and photographs, D. 34-6; D. 44-1; and (iii)
that the puddle further concealed the “transition point” from the raised edge to the depressed
asphalt, supported by witness testimony, D. 43-3 at 14-16, 26, D. 43-5 at 2, 4, photographs, D. 346; D. 44-1, and Doddridge’s opinion, D. 44-2 at 6. Whether the raised edge, depression and related
puddle in the asphalt “alone or in connection . . . [became] a hazard to lawful visitors” are questions
that preclude allowing summary judgment. Reardon v. Parisi, 63 Mass. App. Ct. 39, 45 (2005)
(quoting Sullivan v. Brookline, 416 Mass. 825, 827 (1994)).
Accordingly, there remain disputed questions of fact as to whether Speedway’s duty to
keep the “property in a reasonably safe condition in view of all the circumstances, including the

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likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk,”3
Dos Santos, 465 Mass. at 154 (quoting Mounsey v. Ellard, 363 Mass. 693, 708 (1973)), included
repairing or warning of the gap between the concrete pad and puddle-covered depressed asphalt,
and whether Johnson exercised reasonable care in his movement around the hazard.
VI.

Conclusion
For the foregoing reasons, the Court DENIES Speedway’s motion for summary judgment,

D. 33.
So Ordered.
/s/ Denise J. Casper
United States District Judge

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Speedway argues, in conflict with its concession that it owes some duty as the owner or possessor
of the property, that it does not owe any duty because Johnson was not employed by Speedway,
but rather by an independent contractor. D. 34 at 13. Because Plaintiffs do not assert any agency
theory of liability, Johnson’s employer is only relevant to establish that he was a business invitee
at the gas station the day he was injured, which is undisputed. Under Massachusetts law, “[a]
landowner owes a single duty of reasonable care to all persons lawfully on his premises.” Doherty
v. Town of Belmont, 396 Mass. 271, 274 (1985) (citing Mounsey v. Ellard, 363 Mass. 693 (1973);
Poirier v. Town of Plymouth, 374 Mass. 206, 207 (1978)). Accordingly, the Court rejects this
argument.
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