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Banks v. Boston Properties, LLC

Superior Court of Massachusetts, Suffolk

September 21, 2015

Mark Banks
v.
Boston Properties, LLC et al No. 131460

MEMORANDUM OF DECISION AND ORDER

DENNIS J. CURRAN, Associate Justice.

All three defendants have moved for summary judgment, alleging that there are no genuine issues of material fact. For the following reasons, their motions must be DENIED.

THE ALLEGED FACTS

Taking, as we must, in the light most favorable to the non-moving party, Mr. Mark Banks, we discern the following facts.

Mark Banks was a member of local 22, Laborer's union, which was contracted to demolish the ceilings, walls and ten floors to the Prudential Center tower to make way for a new tenant. The defendant Boston Properties, LLC owned the building; the defendant Crown Building Maintenance Co. was its maintenance contractor whose duties included repairing the automatic doors to the building; and the defendant Dynamic Dock & Door, Inc. contracted with Boston Properties to repair and maintain the loading dock area at the building.

The laborers were permitted to use one freight elevator to move significant quantities of debris from the interior of the building out to the dumpsters in the loading dock. In moving that debris, the workers had to proceed through the doorway of an automatic, high-speed door that only operated vertically.

On February 17, 2010, Mr. Banks, while working at this job site, was bringing detritus down from the demolition site to the loading door. As he was walking through the passageway, the 30-40 lb. door suddenly and without warning smashed down upon him, striking his construction helmet and head, and causing him to suffer post-concussion syndrome and memory loss. He also heard something unusual in his neck, which turned out to be a cervical disc herniation.

DISCUSSION

Standard of Liability

As the property owner, Boston Properties owed a common-law duty of reasonable care to all persons lawfully on its premises and maintain the property in a safe condition. Mounsey v. Ellard, 363 Mass. 693, 707, 297 N.E.2d 43 (1973). The defendants, all, may be held liable if they knew of a dangerous condition or should have become aware of such condition and failed to remedy it in the exercise of reasonable care. Deagle v. The Great Atlantic & Pacific Tea Co., 343 Mass. 263, 265, 178 N.E.2d 286 (1961).

The Defendants' Arguments

All three defendants have offered a " know nothing" defense, in that they claim they knew nothing about this defective door before it crashed down upon Mr. Banks's skull. ( See Memorandum of Boston Properties and Crown Building at page 3: " . . . neither Boston properties nor Crown had any prior knowledge of any [ ] malfunction with the door, nor did it ( sic ) receive prior notice by any other part of its malfunction.") Dynamic Dock echoes this strain. ( See Memorandum at pages 3 and 4: " No evidence has been put forward to show that Dynamic [ ] knew of a defect, was asked to address a defect, or otherwise failed in any respect to performance whatever they were hired to do.")

Mr. Banks counters by offering the testimony of Messrs. Lawrence Saunders, James Aresco, and Ambroigio Pascucci, all of whom witnessed the high-speed door acting erratically well before Mr. Banks was struck.

Mr. Saunders has testified that " everybody" had issues with the door and knew the door would get stuck in either the upright or halfway down position; sometimes, the door would go up on its own. He witnessed maintenance workers responding to the scene trying to repair the door, to no avail; the door would continue to malfunction after each repair visit. Mr. Aresco saw the door " acting funny, " and that it was " pretty obvious." He saw carts get stuck under the door, and the door going up and down by itself on many occasions, with no prompting whatsoever. Finally, Mr. Pascucci averred that reports were made concerning the door " ...


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