United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANT TARGET CORPORATION’S RENEWED MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 79)
MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE.
Pending before this court is a renewed motion for summary judgment filed by defendant Target Corporation (“defendant”) pursuant to Fed.R.Civ.P. 56 (“Rule 56”). (Docket Entry # 79). Plaintiff Jean Liu (“plaintiff”) opposes the motion. (Docket Entry # 82).
On December 7, 2012, plaintiff, a resident of Belmont, Massachusetts, filed a complaint in Massachusetts Superior Court (Middlesex County) against defendant. On February 12, 2013, defendant removed the case to the United States District Court for the District of Massachusetts.
Plaintiff alleges that she tripped and fell on a “dangerous and defective” curb located in front of a Target department store. (Docket Entry # 8, p. 14). Plaintiff contends that the “‘rolled’” design of the curb was unsafe because “[t]he uneven, sloped surface of the curb creates an excessive cross slope.” (Docket Entry # 8, p. 15). The complaint sets out the following causes of action: (1) negligence resulting in personal injury (Count One); and (2) violation of the state building code resulting in personal injury (Count Two). (Docket Entry # 8, p. 16).
On May 1, 2014, defendant moved for summary judgment. (Docket Entry # 45). Plaintiff opposed the motion on the basis that she was entitled to conduct further discovery prior to summary judgment proceedings. (Docket Entry # 49). On July 1, 2014, this court denied defendant’s motion for summary judgment without prejudice and allowed plaintiff to conduct additional discovery of defendant. (Docket Entry # 65). On October 2, 2015, defendant filed the renewed motion for summary judgment. (Docket Entry # 79).
STANDARD OF REVIEW
Summary judgment is designed “to ‘pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.’” Tobin v. Federal Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1st Cir. 1992)). It is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir. 2014).
“Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.’” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011) (citations and internal quotation marks omitted)). The evidence is viewed “in the light most favorable to the non-moving party” and “all reasonable inferences” are drawn in her favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In reviewing a summary judgment motion, a court may examine “all of the record materials on file, ” Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014), including documents, “affidavits or declarations.” Fed.R.Civ.P. 56(c)(1)(A); see Ahmed v. Johnson, 752 F.3d at 495. “Unsupported allegations and speculation, ” however, “do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment.” Rivera-Colón v. Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014) (“allegations of a merely speculative or conclusory nature are rightly disregarded”).
In accordance with LR 56.1, the moving party must submit a “concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried.” The party opposing the motion must include a statement of material facts to which it asserts “there exists a genuine issue to be tried.” LR 56.1. Unless the nonmovant controverts the statements made by the moving party, the facts “will be deemed for purposes of the motion to be admitted” and comprise part of the summary judgment record. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003).
A. The Incident
On December 14, 2009, plaintiff tripped and fell while walking towards the entrance of the Target department store in Watertown, Massachusetts. (Docket Entry # 79-2, pp. 3, 6). Plaintiff testified that the pavement was uneven in the spot where she fell. (Docket Entry # 79-2, p. 3). The weather on the day of the incident was cloudy and cool. (Docket Entry # 79-2, p. 5). There was no rain, snow or precipitation at the time of the incident. (Docket Entry # 79-2, p. 68).
The lower portion of the “rolled curb” at issue is called the “gutter.” (Docket Entry # 83-2, p. 16). The gutter is one foot wide and is the first portion of the curb that a guest would encounter when entering the store. (Docket Entry # 83-2, p. 16). The gutter portion of the curb is a light gray colored concrete that is even and aligned with the bituminous parking lot. (Docket Entry # 83-2, pp. 16-17). This creates a color contrast at the flush border between the tarmac and the light grey of the curb. (Docket Entry # 83-2, p. 16). The gutter transitions to a four-inch rise in elevation that occurs over a one-foot run. (Docket Entry # 83-2, p. 17). Following this slope, the curb then levels out again before meeting the sidewalk at a flush border. (Docket Entry # 83-2, p. 17). According to a group manager in construction project management at Target, Rob Grundstrom (“construction project manager”), there are a number of grooves where the curb meets the sidewalk to signal a transition. (Docket Entry # 83-2, pp. 17-18).
Plaintiff had previously seen the curb in front of the store prior to the day of the incident. (Docket Entry # 79-2, p. 4). Additionally, plaintiff observed the curb immediately before she tripped as she was walking from her vehicle in the parking lot toward the entrance of the store. (Docket Entry # 79-2, p. 4). Plaintiff was walking toward the entrance of the store when she tripped over “[t]he uneven part of the curb.” (Docket Entry # 79-2, p. 3).
Plaintiff testified at deposition that, as she was walking towards the rolled curb, she had her pocketbook in front of her and was looking down. (Docket Entry # 79-2, pp. 13-14). As she approached the rolled curb, plaintiff put her pocketbook on her left shoulder and simultaneously fell forward onto the ground. (Docket Entry # 79-2, p. 14). She remained conscious ...