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Winer v. Marriott Hotel Services, Inc.

United States District Court, D. Massachusetts

December 5, 2018

GEORGE WINER
v.
MARRIOTT HOTEL SERVICES, INC. and TOWNE PARK, LLC
v.
DTG OPERATIONS, INC.

          MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT OF TOWNE PARK, LLC, AND DTG OPERATIONS, INC.

          RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE.

         George Winer brought this lawsuit in Suffolk Superior Court against Marriott Hotel Services, Inc., and Towne Park, LLC, among others, for damages he suffered after tripping over an exposed drain hole.[1] Defendants subsequently removed the case to the federal district court.[2] The Amended Complaint sets out claims of negligence and premises liability against both Marriott (Counts I and III) and Towne (Counts II and IV). In its Answer, Towne asserts a crossclaim for contribution against Marriott. In response, Marriott asserts three crossclaims against Towne: contribution, contractual indemnification, and common law indemnification. Marriott also filed a Third Party Complaint against Winer's employer, DTG Operations, Inc., for contractual indemnity.[3] DTG now moves for summary judgment on that claim, while Towne moves for summary judgment on Winer's claims and Marriott's crossclaims. For the reasons to be explained, DTG's and Towne's motions for summary judgment will be denied.

         BACKGROUND

         The facts, viewed in the light most favorable to Winer and Marriott as the nonmoving parties, are as follows. In May of 2014, Winer was employed as a location manager by DTG, which operated a rental car service at the Marriott Copley Hotel in Boston. DTG has a rental car desk in the hotel and, at the time, had the use of parking spaces one through nine in the hotel's garage. Winer was responsible for inspecting the spaces. On May 16, 2014, Winer was walking to parking space number nine to move a rental car when he tripped over an uncovered drain hole in parking space number eight. As a result of the fall, Winer suffered serious injuries.[4]

         Marriott repairs drains when a specific problem is reported or when a defect is noted during a quarterly inspection of the garage. Marriott from time to time hires Drain Doctor to clean the drains. Towne operates a valet parking service in the garage that is staffed twenty-four hours a day, seven days a week. Towne is “responsible for the general maintenance and cleanliness of the Service Area(s), ” which includes certain parking spaces. Towne Stat. of Facts (TSOF) (Dkt # 56-1) ¶¶ 37, 54-55. When cleaning the floor of the garage, Towne employees occasionally remove a drain cover (including the one in parking space number eight) to empty water and cleaning solution from a Tomcat floor scrubber. Winer alleges that Towne employees, on May 16, 2014, removed the drain cover in parking space number eight to drain the Tomcat. Winer asserts that Marriott and Towne were, in turn, negligent in leaving the drain cover exposed.

         DISCUSSION

         Summary judgment is appropriate when, based upon the pleadings, affidavits, and depositions, “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party's position.” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). Although all reasonable inferences are drawn in the nonmovant's favor, the court cannot “‘draw unreasonable inferences or credit bald assertions, empty conclusions, rank conjecture, or vitriolic invective.'” Pina v. Children's Place, 740 F.3d 785, 795 (1st Cir. 2014), quoting Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007).

         Winer's Claims Against Towne

         Towne asserts that Winer's negligence and premises liability claims fail for three reasons. First, Towne argues that Winer “has no reasonable expectation of proving negligence” because there is no evidence that its employees, as opposed to Marriott's, removed the drain cover on May 16, 2014. Towne Mem. (Dkt # 50) at 6. Second, Towne argues that Winer cannot successfully invoke res ipsa loquitur because it did not have control over the garage. Third, Towne argues that Winer cannot recover because the danger posed by the exposed drain hole was open and obvious.

         Negligence consists of a breach of a duty of care that directly and proximately causes harm to a plaintiff. Delaney v. Reynolds, 63 Mass.App.Ct. 239, 241 (2005). The existence of a duty of care (a prerequisite for a finding of negligence) is a question of law. Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 40 (2009).

         Here, as a matter of law, Towne owed Winer a duty of care arising out of its contractual obligation to clean and maintain the garage. Even if the uncovered drain was open and obvious, Towne would only be excused of its duty to warn, not its duty of care. See Judge v. Carrai, 77 Mass.App.Ct. 803, 806 (2010) (“[T]he fact that a danger is open and obvious does not operate to negate a duty of care.”). It is undisputed that Towne employees operated the garage twenty-four hours a day and, at times, removed drain covers when cleaning. Winer testified that Josh Jones, a Towne account manager, told him after the fall that a Town employee named “Adam must have left a cover off after cleaning the Garage.” TSOF ¶ 71.[5] Whether Towne, or Marriott, or both, were negligent in leaving the drain cover exposed in parking space number eight on May 16, 2014, is a question of fact for the jury.[6] See Foley v. Matulewicz, 17 Mass.App.Ct. 1004, 1005 (1984) (“[S]ummary judgment is rarely granted on the merits of a negligence action because of the jury's unique competence in applying the reasonable man standard to a given fact situation.”) (citation omitted); see also Hebert v. Enos, 60 Mass.App.Ct. 817, 820-821 (2004), quoting Kent v. Commonwealth, 437 Mass. 312, 320 (2002) (“Summary judgment is . . . appropriate . . . if a plaintiff has no reasonable expectation of proving that ‘the injury to the plaintiff was a foreseeable result of the defendant's negligent conduct.'”).

         Marriott's Crossclaims Against Towne

         Towne argues that Marriott's crossclaims for contribution, contractual indemnification, and common law indemnification must be dismissed, mainly because Winer cannot prove negligence.[7] Towne also argues that it is not obligated to indemnify Marriott for negligent acts caused solely by Marriott employees. Winer, however, alleges that both Marriott and Towne were negligent in leaving the drain cover exposed. And given that Winer's negligence claims are an issue of fact, Towne's derivative argument concerning Marriott's crossclaims is similarly a question for the jury. See Berube v. Northampton, 413 Mass. 635, 638 (1992) (“Contribution claims are derivative and not new causes of action. Without liability in tort there is no right of contribution.”); Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366, 369 (1985), quoting Stewart v. Roy Bros., 358 Mass. 446, 459 (1970) (“At common law a person may seek indemnification if that person ‘does not join in the negligent act but is exposed to derivative or vicarious liability for the wrongful act of another.'”).

         Marriott's Contractual ...


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