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Bourget v. Hillsborough County 4H Foundation, Inc.

United States District Court, First Circuit

September 27, 2013

Joseph Bourget, d/b/a Bourget Amusement Company, Plaintiff
v.
Hillsborough County 4H Foundation, Inc., NCI Group, Inc., General Steel Domestic Sales, LLC, Defendants No. 2013 DNH 129

Paul F. Cavanaugh, Esq. Pamela E. Berman, Esq. Kevin A. Koudelka, Esq. Michael D. Richardson, Esq. Robert E. Murphy, Jr., Esq. Erin J. M. Alarcon, Esq.

ORDER

Steven J. McAuliffe United States District Judge

Plaintiff, Joseph Bourget, d/b/a Bourget Amusement Company, brings this suit seeking damages for injury to his business equipment resulting from the collapse of a pre-fabricated steel building. He sues the owner of the building, Hillsborough County 4H Foundation (“the Foundation”), and the building’s manufacturer, NCI Group, Inc. (“NCI”), and distributor, General Steel Domestic Sales, LLC (“General Steel”). All defendants have moved for summary judgment, document nos. 29, 30, 32. Plaintiff objects, arguing that material factual disputes preclude entry of summary judgment as to any defendant.

For the reasons discussed, summary judgment is granted in favor of General Steel and NCI. The Foundation’s motion, however, is necessarily denied on this record.

Standard of Review

When ruling on a motion for summary judgment, the court must “view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In this context, “a fact is ‘material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties’ positions on the issue are supported by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). Nevertheless, if the non-moving party’s “evidence is merely colorable, or is not significantly probative, ” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).

The key, then, to defeating a properly supported motion for summary judgment is the non-movant’s ability to support his or her claims concerning disputed material facts with evidence that conflicts with that proffered by the moving party. See generally Fed.R.Civ.P. 56(c). It naturally follows that while a reviewing court must take into account all properly documented facts, it may ignore a party’s bald assertions, speculation, and unsupported conclusions. See Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997). See also Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).

Background

Except where noted, the following facts are undisputed. The Foundation is a charitable organization. It owns fairgrounds in New Boston where it hosts various agricultural events and activities. In March of 2000, the Foundation contracted with General Steel for the purchase of a prefabricated metal building. The Foundation intended to use the building for fairs, animal shows, summer events, and winter storage. In March of 2001, General Steel delivered a building shell, manufactured by NCI, to the Foundation’s fairgrounds. Foundation volunteers erected the building in the summer of 2002. By November of the same year the building was completely enclosed, although it did not have doors. The Foundation would continue to improve the building, with amenities such as electricity and water, until September of 2003. The Town of New Boston issued a certificate of occupancy on September 4, 2003.

Joseph Bourget operated an outdoor amusement business, or carnival, known as Bourget Amusement Company. During construction of the Foundation’s building in 2002, Bourget, or one of his employees, approached the Foundation’s Chairman, William Grigas, about storing Bourget’s equipment in the building for the 2002-03 winter. In or about June of 2002, Bourget and Grigas agreed that Bourget would store his equipment in the building, for a fee, during the months of October, 2002 through April, 2003. The agreement was memorialized in a document called the “Winter Rental Agreement” (the “Rental Agreement”). Bourget moved his equipment into the building in November of 2002.

Bourget continued to rent the building each winter until 2008. Grigas says that during those years, it was customary for him, each fall, to give Bourget a written agreement for the upcoming winter storage season and to discuss with him the agreement’s terms. Document 29-10, at 3. The written agreements[1] contain the following provisions:

• “It is understood and agreed that the Foundation shall not be responsible for damage to any vehicle or property due to natural or manmade causes including fire and other casualty losses.”
• “It is understood that the Lessor [the Foundation] shall not be responsible for loss of, or damage to, any vehicle or property due to any cause, including fire and other casualty losses.”
• “The Lessee [Bourget] herein agrees to maintain comprehensive property damage insurance coverage on the stored units and agrees to indemnify and hold harmless the Lessor [the Foundation] for ...

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