United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Gail Dein United States Magistrate Judge
plaintiff, Eileen Potvin, has brought this negligence action
against Speedway LLC, the operator of a gas station on
Andover Street in Tewksbury, Massachusetts. Ms. Potvin fell
and injured herself when, she believes, the heel of her shoe
got caught in a groove, known as a positive limiting barrier
(“PLB”), which encircled the gas pump. The PLB is
required by Massachusetts law. This matter is before the
court on the defendant's Motion for Summary Judgment.
(Docket No. 57). Therein, Speedway contends that it is
entitled to judgment as a matter of law because (1) the PLB
was not a hazard which required a warning or remedy, (2) even
if it was a hazard, Speedway owed no duty to warn of such an
open and obvious hazard, and (3) plaintiff failed to
establish that Speedway breached its duty of care because her
expert's opinion “is mere guesswork that is wholly
unsupported by science or data.” (Id.). For
the reasons detailed herein, the undisputed facts establish
that Speedway is entitled to judgment as a matter of law, and
the defendant's motion for summary judgment is ALLOWED.
STATEMENT OF FACTS
following facts are undisputed unless otherwise indicated.
Potvin alleges that on January 20, 2012, between 2:30 p.m.
and 3:00 p.m., she was injured when she tripped and fell at
the Speedway self-service gas station and convenience store
located on Andover Street in Tewksbury, Massachusetts. (DF
¶ 1; PF ¶ 1). On the day of the accident, the
plaintiff picked up her boyfriend at work, and then stopped
at the Speedway to purchase gas. (DF ¶ 2; PF ¶ 2).
She pulled up to a gas pump, with the driver's side near
the pump, got out of her car and walked toward the front of
her car to look for a squeegee to clear her car windshield.
(DF ¶ 3; PF ¶ 3). Her boyfriend went inside to pay
for the gas, which he intended to pump when he returned. (DF
¶ 4; PF ¶ 3).
Potvin was unable to locate a squeegee, so she reversed
direction, and while walking backwards toward her car, lost
her balance and fell, landing on her right hip. (DF
¶¶ 5-6; PF ¶ 4). Ms. Potvin did not actually
see how she fell, but she believes that the side of the heel
of her right shoe “got wedged” in a groove in the
concrete. (DF ¶¶ 5-8; PF ¶ 4). The groove is
known as a positive limiting barrier (“PLB”) and
is required by Massachusetts law. (DF ¶ 9; PF ¶ 6).
time of the accident, 527 CMR § 5.08(5) authorized the
Department of Fire Services (“DFS” or “Fire
Department”) to approve plans for self-service gas
stations in Massachusetts. (DF ¶ 10; PF ¶
The Fire Department required that PLBs be installed at all
self-service gas stations in the Commonwealth prior to those
gas stations being approved for operation. (DF ¶ 11; PF
¶ 8). PLBs are grooves in the concrete pad surrounding
the dispensing island and the dispensers. (DF ¶ 12; PF
¶ 9). They are designed to contain a five gallon spill
of flammable liquids within the area of the outer groove of
the PLB, as that is the limit of the area protected by the
fire suppression system. (DF ¶ 13; PF ¶ 9).
According to DFS guidelines, there must be five concentric
grooves surrounding the gasoline pumps, and the grooves must
be cut to a minimum of three quarters of an inch in width,
and three quarters of an inch in depth. (DF ¶ 14; PF
¶ 10; Def. Ex. B (Beaudin Dep.) at 39-40). The PLBs at
Speedway measured seven-eighths of an inch wide, according to
the plaintiff's expert. (PF ¶ 17). The guidelines do
not prohibit the painting of the PLBs a different color.
(Id. ¶ 11). While certain signs are required by
Department of Fire Services' guidelines, no signs warning
of the existence of PLBs are either required, or prohibited,
by the guidelines. (See Def. Ex. B (Beaudin Dep.) at
Ex. 1, ¶¶ 24-26; PF ¶ 12; DF ¶ 20).
requirement was in effect when the prior owner of the
property at issue in this litigation renovated the site in
1998. (DF ¶ 16). The Fire Department had approved the
design of the PLBs before the gas station opened, and its
approval remained in effect after the property was
transferred to Speedway. (Id. ¶¶ 17-19).
the record in the light most favorable to the plaintiff, in
the two years prior to Ms. Potvin's fall, there were two
incidents reported to Speedway in all of Massachusetts
involving people tripping or falling in the area of
“grooves” near the gas pumps and/or the
PLBs. (See Pl. Ex. 2 (Def. Second
Suppl. Resp. to Pl. Req. for Prod. of Docs.) at Suppl. Resp.
5B). On September 13, 2010, a woman at a Saugus gas station
reported having her heel caught in a cement groove when she
was getting into a vehicle on the passenger side at a gas
pump. (Id. at “Customer Statement of
Incident”). On December 6, 2010, a woman at a gas
station in Worcester reported that she had “tripped on
the grooves by pump 3.” (Id. at
“Customer Information & Statement”).
According to the representative of the Fire Department who
was deposed in this case, the Fire Department had not had any
complaints that the PLBs were tripping hazards. (Def. Ex. B
(Beaudin Dep.) at 37).
plaintiff has designated Steven Frederickson as her expert.
He is a licensed civil engineer who is employed by the City
of Beverly as a director of municipal inspections, and is
also self-employed as an engineering consultant. (PF
¶¶ 13-14). Mr. Frederickson has had no experience
with PLBs or, apparently, self-service gas stations, but
extrapolated from regulations concerning other public spaces
to evaluate the conditions at issue in this litigation.
(See DF ¶ 36). Mr. Frederickson concluded that
optimally the grooves should have been 1/2" wide but the
regulations required that they be 3/4" wide. He found
that the grooves were, in fact, 7/8” - 1” wide,
and opined that as a result additional signage and/or visual
warnings should have been provided. (See Pl. Ex. 6
(Frederickson Report) at 9). The plaintiff does not base her
negligence claim on the width of the grooves in and of
themselves. Rather, she argues, in light of the
“exceeded width of the grooves, signage and/or a visual
warning, such as a painted surface, should have been provided
to pedestrians.” (Pl. Mem. at 4). As detailed below,
Mr. Frederickson's opinion does not defeat the motion for
summary judgment since there was no duty to warn against the
obvious and open condition as a matter of law.
Frederickson opined that pursuant to the definitions in the
Massachusetts Building Code, the area of the PLBs qualifies
as an “exit discharge” since it is “part of
the means of egress from the building, ” and that as an
“exit discharge” the Building Code requires that
“it must be maintained.” (See DF ¶
21; Pl. Ex. 6 at 3). He then concluded that, since the Building
Code “is silent on what constitutes maintenance[,
]” he would look to the American Society of Testing and
Materials (ASTM) Standard Practice of Safe Walking Surfaces
(ASTM F-1637), because it is “[t]he most widely
recognized standard for safe walking surfaces[.]” (Pl.
Ex. 6 at 3). However, Mr. Frederickson admits that the ...