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McDonough v. CBRE, Inc.

United States District Court, D. Massachusetts

May 4, 2016



F. DENNIS SAYLOR IV United States District Judge

This is an action in negligence arising out of a slip-and-fall incident. Jurisdiction is based on diversity of citizenship.

On May 7, 2012, plaintiff Pauline McDonough fell while walking on a tile floor in a building managed by defendant CBRE, Inc. Defendant A&A Maintenance Enterprises, Inc. served as CBRE’s janitorial subcontractor. The amended complaint alleges that defendants’ negligence, specifically their negligent waxing of the floor, caused McDonough to fall and suffer injuries. Defendants have moved for summary judgment.

For the following reasons, defendants’ motions for summary judgment will be denied.

I. Background

The following facts are either undisputed or drawn in the light most favorable to McDonough, the non-moving party.

A. Factual Background

Pauline McDonough resides in Massachusetts. (Notice of Removal 2). CBRE, Inc. is a Delaware Corporation with its principal place of business in California. (Id.). A&A Maintenance Enterprises, Inc. is a New York Corporation with its principal place of business in New York. (Id.). Siemens Healthcare, not a party to this case, owns the building where McDonough fell. (A&A SMF ¶ 1). CBRE managed the Siemens building and hired A&A to clean it. (Id. at ¶¶ 4-5).

On Monday, May 7, 2012, McDonough arrived at the building to receive a vaccination. (McDonough Dep. 42:19-23). It appears that McDonough was a Siemens employee at the time, although she worked in a different building. (Id. at 12:5-7). Early in the afternoon, McDonough slipped and fell on the tile floor in the hall leading to the nurse’s office. (Am. Compl. ¶ 5). As a result, she sustained a radial head fracture, multiple fractures to her right arm, sprains to her right ankle and foot, and thigh pain. (Id. at ¶ 7).

McDonough testified at her deposition that at the time of her fall, she was not aware of what caused her to slip, and that she did not notice anything unusual about the floor while she was walking. (McDonough Dep. 60:21-25). According to her, the floor did not seem slippery while she was walking before her fall, and it did not seem to be in a different condition than it was on earlier occasions that she had walked in the building. (Id. at 60:21-61:2; 62:2-4). She did not see any liquids, wax, or warning signs on the floor. (Id. at 86:17-25). However, after slipping, McDonough concluded that there was wax on the floor that caused her heel to slip. (Id. at 86:9-22).

Two Siemens employees, Gary Walsh and Nancy Malloy, came to McDonough’s aid while she was lying on the floor. Neither Walsh nor Malloy saw any wet or slippery substances on the floor. (Malloy Dep. 23:11-20; Walsh Dep. 37:10-14). Malloy concluded that McDonough’s fall “could be associated with the type of shoes she was wearing, (small, vinyl heels), and the cleanliness of the floor.” (Malloy Dep. 75:3-22).

After McDonough was taken away in an ambulance and CBRE was notified of the incident over the radio, Walsh saw an A&A employee, Santos Crispin Esteben, clean up McDonough’s blood and disinfect the area. (Walsh Dep. 31:10-34:13). The day after McDonough’s fall, Walsh noticed “some slick spots” in the same hallway, and instructed CBRE to have the floor refinished. (Id. at 56:13-24). Defendants contend that they were not notified of McDonough’s fall until she filed suit. (A&A SMF ¶ 16).

Pursuant to its contract with CBRE, A&A “was contracted to scrub and rewax the tile floors quarterly, as well as, sweep and wash all hard floors daily.” (Id. at ¶ 6). Waxing generally occurred over the weekend, so as not to disrupt the work in the building, and it could take several weeks to complete the waxing process in the entire building. (Id. at ¶ 17; Romero Dep. 42:18-44:12). Neither A&A nor CBRE have records of when the floors were last waxed before McDonough’s fall. (A&A SMF ¶¶ 19-20). A&A did not regularly clean the floors during the day. (Romero Dep. 34:14-22). According to A&A’s regional branch manager, at the time that McDonough fell, A&A janitors applied wax to the floor by placing the wax in a bucket and using a flat mop to apply it. (Id. at 47:1-6). After applying the wax, janitors would inspect the floor to make sure that it “look[ed] good, ” but they did not walk the floor to determine whether it was slippery. (Id. at 51:8-22).

The building’s records indicate that at least four other people fell on tile floors in the building--absent water or some other visible cause--from 2009 until the date McDonough fell, and at least four people have fallen since the date of her ...

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