United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE.
Richard Johnson (“Johnson”) and Catherine Jarvis
“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.
Standard of Review
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. 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).
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, ¶ 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,
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.
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.
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)).
“[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).
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 evidence 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 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