FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. M. Page Kelley, Magistrate Judge]
J. Oliveira for appellant.
F. Gleavy, with whom Lynch & Lynch was on brief, for
Howard, Chief Judge, Lynch and Lipez, Circuit Judges.
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).
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.
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.
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.
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.
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. 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.
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 ...