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Louis Fernandes v. Agar Supply Company

July 30, 2012



The opinion of the court was delivered by: Lynch, Chief Judge.

Before Lynch, Chief Judge, Torruella and Lipez, Circuit Judges.

In this personal injury action, Louis Fernandes sued AGAR Supply Company, Inc., for negligence in federal district court under diversity jurisdiction. Fernandes, a resident of Rhode Island, injured his back when he stepped into a hole in the floor of a tire "shed" which was on property leased by AGAR, a Massachusetts corporation, to Fernandes's employer, Penske Truck Leasing. Whatever remedies Fernandes may have against Penske, he sued AGAR on the theory that it owed him a duty of care to maintain and repair the tire "shed" under the lease between AGAR and Penske. The district court granted summary judgment to AGAR on the duty of care issue under Massachusetts law, relying on Humphrey v. Byron, 850 N.E.2d 1044 (Mass. 2006). See Fernandes v. AGAR Supply Co., Inc., No. 09-10930, 2011 WL 2266537 (D. Mass. June 7, 2011). We affirm.


We view the facts in the light most favorable to the party opposing summary judgment, Fernandes. Guay v. Burack, 677 F.3d 10, 13 (1st Cir. 2012).

We put the word "shed" in quotation marks in the opening paragraph because it is not a conventional shed. Rather, the tire shed in which Fernandes suffered his back injury was an old shipping container. It was located near, but separate from, a garage building in Taunton, Massachusetts, that Penske leased from AGAR. AGAR had previously been located in Boston, and, while there, its maintenance personnel had used the same container to store their tools and later to store tires. When AGAR moved its operations to Taunton in 2001, it brought the container along and placed it on the property for use as tire storage.

Shortly after moving to Taunton, AGAR entered into an agreement with a company called AMI Leasing for the leasing and maintenance of tractor trailers. The agreement also stated that AGAR would provide to AMI a lease on a "shop facility" located on its Taunton property. This lease does not define "shop facility," nor does it mention the tire shed or a container. In 2004, after AMI had taken over the Taunton garage and continued to use the container for tire storage, Penske acquired AMI and became the tenant under the same lease.*fn1

Under the lease, Penske occupied the garage while AGAR retained access to only limited facilities: a wash bay located at one end of the garage and separated from the repair shop in the garage by a cinder block wall. The lease at paragraph 29 obligated AGAR to maintain and repair certain components of "the garage":

AGAR shall, at is [sic] expense, maintain, repair and replace as necessary the roof, walls, overhead doors, all structural components, oil/water separator, electrical, plumbing, and boiler/furnace issues in the garage, except for repairs occasioned by the negligence of [Penske]. [Penske] agrees to pay cost of utilities for the garage.

AGAR employed custodial and maintenance personnel, while Penske did not.

For purposes of its motion for summary judgment, AGAR conceded that it was the owner of the tire shed. Penske's use of the tire shed was based on its lease of the shop facility. Penske had placed a lock on the tire shed and had not given a key to AGAR. The only copies of the key were kept in the garage's service office, which was used exclusively by Penske. AGAR never used, inspected, maintained, or repaired the tire shed during Penske's lease of the shop facility.

Penske's service manager, Vincent Boschetti, was aware before Fernandes's accident that the tire shed's floor was in an unsafe condition. The roof of the container was rotted, and the water that leaked in had softened the floor and created two or three holes, each about eleven by seven inches in size. Several Penkse employees, including Fernandes, had complained to Boschetti about the holes in the floor. Boschetti had attempted to repair the floor himself. When that did not work, he brought his concerns to his superior at Penske, who told him that Penske would not pay for any repairs to the tire shed and that he should instead talk to AGAR. AGAR likewise told Boschetti that it would not spend any money to repair the floor.

At the time of his injury, Fernandes had been employed as a technician by Penske for about three years, doing heavy duty truck maintenance and repairs at the Taunton facility. He was injured at about 3:00 A.M. on December 7, 2007, while working the overnight shift. The tire shed had no lights, so Fernandes was using a flashlight. In the course of moving the third of four truck tires, which had been covering a known hole in the floor, Fernandes stepped in the hole, losing his balance and wrenching his back in an attempt to keep from falling. Fernandes was aware of the hole, having seen it at least six to eight times before his injury and stumbling into it at least twice. After Fernandes's injury, Penske arranged for the removal of the tire shed. Penske then entered into a separate lease agreement with another company for a replacement container, which was also placed on AGAR's Taunton property.

On June 3, 2009, Fernandes filed his complaint in the district court alleging negligence against AGAR. This is a timely appeal from entry ...

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