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Lapointe v. Silko Motor Sales, Inc.

United States Court of Appeals, First Circuit

June 12, 2019

RAYMOND LAPOINTE, Plaintiff, Appellant,
v.
SILKO MOTOR SALES, INC., Defendant, Appellee.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. M. Page Kelley, Magistrate Judge]

          David J. Oliveira for appellant.

          John F. Gleavy, with whom Lynch & Lynch was on brief, for appellee.

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

          LIPEZ, Circuit Judge.

         In this diversity tort action, Raymond Lapointe seeks damages for a severe knee injury sustained when he slipped on fluid at an auto dealership that his company had been hired to clean. Finding that the dealership neither had a duty to warn Lapointe of the puddle nor acted negligently in failing to address it, the district court granted summary judgment for defendant Silko Motor Sales, Inc. After careful review of the facts and the law, we affirm. The district court properly found that Silko could not be found liable because Lapointe was "hurt by the very hazard he was required to remedy." Callahan v. Bos. Edison Co., 509 N.E.2d 1208, 1210 (Mass. 1987).

         I.

         We summarize the relevant facts, which are undisputed unless otherwise noted. Silko hired Jan-Pro Cleaning Systems ("Jan Pro") to clean its dealership, and the parties' written agreement specified that the cleaning tasks included "[m]achine scrub[bing] all service floors" six times per week, using a degreasing chemical provided by the dealership. At the time of his fall in July 2013, Lapointe was a regional manager for Jan Pro, where his responsibilities included filling in for the company's franchise owners when they were sick. On the evening that Lapointe slipped, he was substituting at Silko for a franchisee, as he had done there on previous occasions.

         Lapointe cleaned other parts of the Silko facility before entering the service area and, before scrubbing the floors there, he decided to dispose of trash in a dumpster outside. He headed toward the button that opened the service area garage door. As he walked around a pallet holding engine parts, he lost his balance and fell. Lapointe then noticed an accumulation of oil or transmission fluid on the floor near the pallet, which he estimated to be about eight inches in diameter and one-sixteenth of an inch deep. After his fall, Lapointe completed his work at the dealership, including cleaning the substance from the floor where he fell.

         Lapointe testified in his deposition that the pallet was waist high and placed on the floor in an area that Jan Pro ordinarily cleaned with an "auto scrubber" machine, using the Silko-provided degreaser. Describing the general area of his fall, Lapointe reported that "[s]ometimes there was a car on the ground, sometimes it was elevated like that so we could clean underneath it. . . . This was a typical scene in a garage. There was always three or four or five vehicles in the garage at night." Asked if, in the past, he would "clean up spots or oils or other transmission fluids," Lapointe responded:

Absolutely. You got to understand, this entire floor, there was oil and grease everywhere. People had been working all day long. This particular one was a puddle because the engine had leaked. But typically there would be oil and grease everywhere. And the machine with the chemical that they purchased, it was a very good chemical, and the machine did a very good job, but I hadn't gotten to that point yet.

         In a statement containing six facts in addition to those the parties agreed upon, see Mass. Loc. R. 56.1, Lapointe asserted that "he had never encountered stored automotive parts (engines, transmissions) as he did on the night in question and, therefore, was not aware of the risk of having those parts leak pools of slippery fluids." He also stated that Silko's policy called for its employees to "fully drain[]" automotive parts before placing them for disposal and to cover any spills resulting from drainage with absorbent mats.

         In March 2016, nearly three years after his fall and injury, Lapointe sued Silko in federal court, asserting common law claims for negligence and failure to warn.[1] In the negligence count, Lapointe alleged that Silko breached its duty to maintain its premises in a reasonably safe condition for persons whose presence was foreseeable, causing the service area floor to be "covered with a substance that presented an unreasonable risk of harm" to him. In the second count, Lapointe alleged that Silko breached its duty to warn him of that hazardous condition.

         Silko moved for summary judgment, which the district court granted primarily based on its determination that Silko owed Lapointe no duty of care because "the danger posed by the oil on the floor was objectively open and obvious." Lapointe v. Silko Motor Sales, Inc., No. 1:16-cv-10532-MPK, 2018 WL 3849855, at *4 (Aug. 10, 2018). The court found inapplicable a "narrow exception" to "the open and obvious rule in Massachusetts" that imposes a duty to remedy a blatant danger "where the defendant should have foreseen that injury was likely." Id. In addition, the court noted Massachusetts precedent holding that a property owner does not owe a duty of care to a plaintiff where "the danger presented to the ...


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