Cracchiolo v. Eastern Fisheries, Inc. , 740 F.3d 64 ( 2014 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 12-2174, 13-1787
    CARLA CRACCHIOLO, Individually and as Administratrix
    of the Estate of Giuseppe Cracchiolo,
    Plaintiff, Appellant,
    v.
    EASTERN FISHERIES, INC.; RCP REALTY,
    Defendants, Appellees.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Douglas P. Woodlock, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Stahl and Lipez, Circuit Judges.
    Joseph M. Orlando, with whom Brian S. McCormick and Orlando &
    Associates were on brief, for appellant.
    Mark W. Shaughnessy, with whom Anthony M. Campo, Matthew H.
    Greene, and Boyle, Shaughnessy, & Campo, P.C. were on brief, for
    appellees.
    January 15, 2014
    LYNCH, Chief Judge.     Shortly after midnight on January
    28, 2011, Giuseppe Cracchiolo fell and drowned after slipping from
    an obviously hazardous place on a pier at a New Bedford fishery
    while attempting to return to the commercial fishing boat on which
    he was working. His wife Carla Cracchiolo, acting individually and
    as administratrix of the estate, sued defendants RCP Realty and
    Eastern Fisheries, Inc. for damages for wrongful death based on a
    negligence theory.    These defendants are, respectively, the owner
    and the leaseholder of the facility where the ship was docked.
    They were alleged to have failed to use due care in the inspection,
    maintenance, and repair of the premises and to have failed to
    provide Cracchiolo with a safe and reasonable egress from and
    ingress to the boat, particularly with respect to the ice and snow
    conditions on the pier that night.
    The district court granted the defendants' motion for
    summary judgment on the basis that the defendants owed no duty of
    care to remedy the hazard under the circumstances of this case. We
    reverse and remand.   We do not decide the duty of care issue.   We
    write narrowly and conclude the issue cannot be decided on the
    undisputed facts in this summary judgment record.
    I.
    Plaintiff filed suit against O'Hara Corporation, which
    owned the boat, under the Jones Act, 46 U.S.C. § 30104, and general
    maritime law.   She also brought tort claims under Massachusetts's
    -2-
    wrongful death statute, Mass. Gen. Laws ch. 229, § 2, against
    Eastern Fisheries, which operated the property where the boat was
    docked, and RCP Realty, which owned the property.
    All three defendants moved for summary judgment on July
    2, 2012.     Plaintiff opposed the motions, and the court held a
    hearing on the motions on August 15, 2012. Trial was scheduled for
    September 17, 2012.        On September 6, 2012, at the final pretrial
    conference, the district court, in an oral order, denied O'Hara's
    summary judgment motion but granted Eastern Fisheries and RCP's. On
    September 11, 2012, plaintiff filed a motion for reconsideration,
    which was denied.1       Plaintiff appeals.
    II.
    For purposes of summary judgment, we describe the facts
    in   the   light    most   favorable    to   the   nonmovant,   drawing   all
    reasonable inferences in her favor.          See, e.g., Barclays Bank PLC
    v. Poynter, 
    710 F.3d 16
    , 19 (1st Cir. 2013).
    A.          Layout of the Defendants' Property
    Giuseppe Cracchiolo worked as a commercial fisherman and
    engineer on the F/V Sunlight, a herring boat.           During the winter,
    the Sunlight operated out of the defendants' fish processing
    facility    in     New   Bedford,   Massachusetts,    and   docked   at   the
    facility's pier. The Sunlight paid a fee for use of that facility;
    1
    On September 13, 2012, Plaintiff and O'Hara settled their
    case. The district court retained supplemental jurisdiction over
    the claims against Eastern Fisheries and RCP.
    -3-
    the facility was used both for processing fish and for berthing
    vessels.    At least thirteen vessels used the facility in 2010 and
    2011.
    The roughly rectangular waterfront property is enclosed
    by a chain link fence on its north, west, and south sides; the east
    side abuts the water.      The property contains a fish processing
    plant, the front door of which faces the western side of the
    property, where there is a parking lot.     At the back of the plant
    is a pier on the east side, where fishing vessels dock and in some
    instances offload their catches. The pier runs from north to south
    and a wooden cap board, about a foot wide, runs its length.    There
    are bollards, for the boats to tie off their lines, located at
    various points along the pier, including near the south end.      In
    the ordinary course, the entire length of the pier is used,
    including to tie the lines to the southern bollard.    Scallop boats
    also unloaded near the southern end and occasionally stored nets in
    the area.
    There are several feet of space between the plant and the
    fence on the north side, and a smaller grass-covered space of just
    a few feet between the plant and the fence on the south side.
    Between the fence on the western side, which has a large gate with
    a padlock, and the western door of the plant is a parking lot.
    The fence along the south side did not go all the way to
    the water's edge; rather, it stopped two to three feet short of the
    -4-
    water's edge.     Importantly, the end of the fence had been folded
    back deliberately, leaving an obvious gap in the fence.     Access to
    the south side of the property, from the adjacent property, was
    easily obtained through the use of this gap.       This was the most
    direct way for crew members to get to the boats if the gate to the
    property was locked and they did not have keys.
    The grass on the building's south side extends about ten
    feet north of the fence in the southeast corner.       Immediately to
    the north of the grassy area, an asphalt surface begins.      It goes
    across the pier from the south to the northeast corner of the
    property.     Along the eastern edge of the property, where the pier
    runs along the water, is a retaining wall. The easternmost edge of
    the pier was covered by a wooden cap log.
    Fishing vessels, including the Sunlight, tied off next to
    the plant at its pier and unloaded their fish catch into the
    building.     Sometimes another fishing vessel would be tied to the
    vessel tied to the dock.      This was true of the Sunlight and its
    companion vessel.     The Sunlight had used the pier since 2009.   The
    Sunlight always tied off with its bow to the south and its stern to
    the north.    The boat would tie off using a bollard at the southern
    end of the pier near the bow.      The stern sat lower on the water
    than the bow and was roughly level with the pier.        As a result,
    crew members leaving the boat would ordinarily step off the
    Sunlight's stern onto the pier.     By contrast, at the south end of
    -5-
    the boat, the bow rose an additional several feet above the pier.
    Crew members tying off the boat with the bow lines would walk to
    the southern end of the pier to do so.   Scallop boats also unloaded
    their catches at the southern end of the pier.    After leaving from
    the stern, crew members wanting to leave the property typically
    walked along a wide path on the north side of the property, between
    the processing plant and the fence, until reaching the parking lot
    on the western half of the property.     They left through the gate.
    The reverse route, from the parking lot, along the north side of
    the property, and to the stern, would allow the crew to reboard the
    boat.
    Apart from the gate at the front entrance, the other way
    into the property was through the obvious gap in the fence at the
    southeast corner.      As the Sunlight's captain, Joseph Martin,
    testified, "[e]verybody knows you can go that way."    Another crew
    member, Craig Lazaro, explained that the gap was "easy to see."2
    Captain Martin stated that although they knew the gap in the
    southeast corner existed, crew members would, "most of the time,"
    enter the property through the main gate on the west side of the
    property.
    2
    Eastern Fisheries' corporate representative, however,
    asserted that the company did not even know that the gap existed,
    much less that anyone walked through it to access the defendants'
    property. We disregard that denial of knowledge of access through
    the gap, as we must take the evidence in favor of the plaintiff.
    -6-
    Upon entering through the gap in the southeast corner of
    the fence, crew members could turn left and walk in the area
    between the fence and the fish processing building, back to the
    parking lot, past the building's front door, then take the path
    along the north side of the building to the stern of the boat.
    This was the longer of the two possible routes from the southeast
    corner.
    Alternatively, a few crew members chose a shorter but
    more hazardous route.     Instead of turning left, they walked
    straight ahead to the asphalt and continued along the waterfront
    retaining wall, to walk along the pier from the bow to the stern of
    the boat. Of necessity, those taking this route would have to walk
    for part of the way on the wooden cap log on the retaining wall
    alongside a raised platform attached to the rear of the building
    (known as a "takeout platform") used for scallop vessels.    One of
    the defendants' security cameras covered the area.
    In that particular area, the takeout platform extended
    out toward the water, leaving only a narrow space along the pier.
    That space was estimated to be about a foot in width.            An
    individual taking this path would, on reaching the platform, turn
    sideways, try to hold on to the wall of the takeout platform, and
    step or shimmy alongside it on the retaining wall of the pier until
    past the platform and near the boat's stern.         This route was
    significantly shorter than the option of turning left and walking
    -7-
    around the building to reach the boat's stern.        It was defendants'
    policy and practice to remove snow from the parking lot, but the
    snow and ice removal ended there.          Snow and ice were not removed
    from the pier, most of the adjacent northern walkway, or the
    grounds around the building.
    Although it is clear that it was more dangerous to cross
    the retaining wall than to walk around the building, a jury could
    assess the degree of risk involved in doing so, as part of its
    assessment of the foreseeability that a seaman would use the route.
    It could consider the testimony of Captain Martin, who found the
    increased danger of use of the retaining wall so self-evident that
    he did not even consider walking along it.        It could also consider
    the   contrasting   testimony   of    crew   member   Craig   Lazaro,   who
    testified that he twice crossed the retaining wall and "never even
    thought about" taking the alternate route around the building.          In
    doing so, it could also consider the relative risks posed by ice
    and snow along the two routes.
    B.         Crew Members' Past Patterns of Accessing the Property
    Cracchiolo died after he took the route through the gap
    in the southeastern corner of the fence when he found the western
    gate locked and he did not have a key.        There are a great number of
    facts in dispute as to how often such situations, which caused crew
    members to use the gap to enter the property, arose.          It is unclear
    what Eastern Fisheries' policy was with respect to who would lock
    -8-
    the gate and when, as well as whether different policies applied
    when    crew    members   were   sleeping     aboard   boats   docked    at   the
    facility. The evidence shows that the gate was locked sporadically
    at best, and may even have been unlocked the vast majority of the
    time.    It further shows that crew members lost or broke their keys
    with some frequency, as Eastern Fisheries had to provide about
    twenty-five replacement keys per year to crew members of boats
    using its facility.        It is also disputed how many spare keys, if
    any,    were    kept    aboard   the   Sunlight,     and   whether    Cracchiolo
    personally had one. We think it foreseeable that some crew members
    would not have keys with them and would enter the property through
    the gap in the fence when the gate was locked.
    More important is the connection between foreseeable use
    of     the   gap   in   the   fence    to    enter   the   property     and   the
    foreseeability, under the conditions that night, that seamen would
    choose not to turn left and go around the building, but to try to
    access the boat by walking straight from the southeast corner to
    the asphalt and along the pier's retaining wall to get to the stern
    of the boat on the pier's north side despite the obvious hazards.
    The record contains evidence of at least five instances in which
    crew members chose to use the southeast gap in the fence to enter
    the property.      Captain Martin did so once.         Significantly, when he
    did, he elected to turn left, walk along the south side of the
    processing plant to the parking lot, and then take the customary
    -9-
    route around the north side of the plant to the boat's stern.   On
    the other hand, the record shows that on two of the five occasions
    when crew members used the gap in the fence, they accessed the boat
    via the retaining wall.   Besides the night of Cracchiolo's death,
    in early January 2011, Lazaro and Dale Moore, a crew member of the
    companion ship to the Sunlight, had used the southeast gap,
    continued straight, and walked directly along the pier's retaining
    wall past the takeout platform to board the boat.    Finally, later
    that month, Lazaro and Cracchiolo used that same route along the
    retaining wall on the night Cracchiolo died.   We think it fair to
    infer the security cameras probably captured the uses of the
    hazardous route before the night Cracchiolo died.
    C.        Particulars Regarding Cracchiolo's Death
    The Sunlight docked at the New Bedford facility on
    January 26, 2011, after a fishing trip.    A pipe on the boat had
    broken, and the crew decided to keep the boat docked at the plant
    for at least a few days while it was being repaired.    Lazaro and
    Cracchiolo, the engineer, stayed on board to oversee the repairs.
    Defendants were aware that the boat would remain docked with crew
    members aboard during that period, and that the crew members would
    come and go from the property.
    The defendants' property was covered in snow and ice on
    January 27, 2011.   Photographs show that the parking lot had been
    plowed, and that the entire pier and the grassy areas were covered
    -10-
    in ice and snow.      The retaining wall on the pier was likewise
    covered in ice and snow.     In addition, there is some evidence that
    Eastern Fisheries workers also hosed down the takeout platform and
    parts of the pier that night, adding to the ice.         The area between
    the processing plant and the fence along the entire southern side
    of the building was also covered in snow.
    On the night of January 27, Cracchiolo and Lazaro left
    the facility together for dinner and drinks around 7:30 p.m.           The
    main gate was open when they left but was locked when they
    separately returned, and neither brought with him a key to the
    gate.   At some point in the night, the two men separated, and
    Lazaro took a cab back to the Sunlight.     Lazaro wanted to return to
    the boat to get money to pay the cab driver.            He found the gate
    locked and decided to walk in through the gap in the southeast
    corner of the fence.         Once through the gap, Lazaro continued
    straight and walked along the waterfront retaining wall rather than
    turning left and walking around the fish processing building.          The
    security   footage   shows   Lazaro   reaching    the   takeout   platform,
    holding onto it, and side-stepping alongside it on the one-foot-
    wide retaining wall to get to the boat's stern. After getting past
    the takeout platform, Lazaro boarded the Sunlight, retrieved his
    money, walked back to the main gate along the northern route, and
    paid the cab driver through the fence.           He returned to the boat
    -11-
    along the northern route he had just taken to the gate; that route
    was icy.
    Some time later that night, Lazaro called Cracchiolo, who
    had not yet returned. He told Cracchiolo that the gate was locked.
    Cracchiolo asked how, then, to return to the boat.           A jury could
    infer he did not have a key.            Lazaro responded that Cracchiolo
    should come up into the property from the southeastern corner and
    he should continue walking along the retaining wall, the same way
    Lazaro had, to get to the boat.        He also warned Cracchiolo that the
    path was icy.        Cracchiolo told Lazaro that he was staying at a bar
    to watch the end of a basketball game and that Lazaro should not
    wait for him.
    Cracchiolo eventually returned to the property just after
    midnight.     The security footage shows that Cracchiolo entered from
    the southeastern side through the gap in the fence.          Once inside,
    he continued straight ahead and began to walk along the pier to the
    retaining wall and takeout platform, as Lazaro had done.         Security
    footage shows that as Cracchiolo was holding on to the takeout
    platform and trying to step sidewise along the retaining wall
    between the takeout platform and the Sunlight, he slipped and fell
    from   the    pier    into   the   water.    He   drowned.   Lazaro   found
    Cracchiolo's body in the water the next morning and called the
    police.      A later forensic examination measured Cracchiolo's blood
    alcohol level at 0.21 in one sample and 0.18 in another.
    -12-
    III.
    We review the district court's summary judgment decision
    de novo.   See Barclays Bank PLC v. Poynter, 
    710 F.3d 16
    , 19 (1st
    Cir. 2013).
    A.         Wrongful Death and Negligence
    The    Massachusetts   wrongful    death   statute   imposes
    liability against a "person who . . . by his negligence causes the
    death of a person."      Mass. Gen. Laws ch. 229, § 2.     Plaintiff's
    negligence theory in this case is that Eastern Fisheries and RCP
    violated their duty to remedy the hazard of snow and ice on the
    pier, particularly on the retaining wall at the takeout platform,
    from which Cracchiolo fell.
    "To prevail on a negligence claim, a plaintiff must prove
    that the defendant owed the plaintiff a duty of reasonable care,
    that the defendant breached this duty, that damage resulted, and
    that there was a causal relation between the breach of the duty and
    the damage."     Jupin v. Kask, 
    849 N.E.2d 829
    , 834-35 (Mass. 2006).
    The questions of breach, damages, and causation are "the special
    province of the jury."       
    Id. at 835.
        However, the question of
    whether the defendant owed a duty of care in the first instance is
    an issue of law, and may be settled on summary judgment if (on the
    undisputed facts) the risks posed by the defendant's actions were
    not "foreseeable."     
    Id. Massachusetts courts
    may also make this
    determination after trial, in light of all of the evidence.        See
    -13-
    Dos Santos v. Coleta, 
    987 N.E.2d 1187
    , 1198 (Mass. 2013) (finding
    evidence sufficient to allow jury to impose duty of care based
    "[o]n the[] facts" established at trial).
    B.        Massachusetts Snow and Ice Cases
    The Massachusetts courts have established fairly clearly
    the obligations of landowners to remove snow and ice accumulations
    on their property.   In Soederberg v. Concord Greene Condominium
    Ass'n, 
    921 N.E.2d 1020
    (Mass. App. Ct. 2010), the Massachusetts
    Appeals Court concluded that landowners do have a duty to remove
    snow and ice accumulations even though those accumulations present
    open and obvious hazards to visitors. The court explained that the
    open and obvious nature of the hazard does not "negate[] an owner's
    duty to remedy the hazard."   
    Id. at 1024.
      Rather, a landowner must
    remedy snow and ice hazards where he "can and should anticipate
    that the dangerous condition will cause physical harm to the
    invitee notwithstanding its known or obvious danger." 
    Id. (quoting Restatement
    (Second) of Torts § 343A cmt. f) (internal quotation
    marks omitted).   The court further explained that a plaintiff's
    unreasonable decision to encounter an ice hazard could bear on the
    issue of comparative negligence, see 
    id. at 1025,
    but that this is
    a jury question and that the plaintiff's unreasonable behavior will
    not bar recovery as a matter of law even where other options that
    avoided the ice hazard were available, see 
    id. at 1024.
    -14-
    The SJC further developed the law in this field in
    Papadopoulos v. Target Corp., 
    930 N.E.2d 142
    (Mass. 2010).                In
    Papadopoulos, a customer in the defendant's parking lot slipped and
    fell on a patch of ice that either fell from a snow pile or melted
    off the pile and refroze.      The customer sued for negligence, and
    the trial court granted summary judgment in favor of defendants on
    the ground that the ice was a natural accumulation.           
    Id. at 144.
    The   SJC   reversed   and   remanded.   It   held    that     the    proper
    consideration was not whether the snow and ice accumulation was
    natural or unnatural, but rather whether the landowner had made the
    premises reasonably safe for lawful visitors.        See 
    id. at 150.
         In
    reaching that holding, the SJC emphasized the distinction between
    the duty to warn of dangers and the duty to remedy them.             The duty
    to warn, the court reasoned, was typically obviated in snow and ice
    cases by the fact that the hazard was open and obvious, so a
    warning "would be superfluous."      
    Id. at 151.
        It then explained,
    citing Soederberg, that the duty to remedy the danger remained when
    it was foreseeable that visitors would choose to encounter a hazard
    despite the open and obvious risks it posed.            
    Id. The court
    reiterated:
    It is not reasonable for a property owner to
    leave snow or ice on a walkway where it is
    reasonable to expect that a hardy New England
    visitor would choose to risk crossing the snow
    or ice rather than turn back or attempt an
    equally or more perilous walk around it.
    -15-
    
    Id. (citing Soederberg,
    921 N.E.2d at 1025).        The court concluded
    by holding that snow and ice accumulations trigger the same duty to
    remedy as other dangerous conditions -- namely, the duty to "make
    reasonable efforts to protect lawful visitors against the danger."
    
    Id. at 154.
    C.          Massachusetts Duty of Care Cases
    Dos Santos, though not a snow and ice case, provides
    further guidance for us here.3    Like Dos Santos, this case alleges
    not a duty to warn,4 but a duty to remedy a hazardous condition.
    Dos Santos involved a question not merely of foreseeability of a
    risk posed by a hazard, but the foreseeability of a risk posed by
    an open and obvious hazard.    Dos Santos explained that a landowner
    "is not relieved from remedying an open and obvious danger where
    [the landowner] can and should anticipate that the dangerous
    condition   will   cause   physical   harm   to   the    [lawful   visitor]
    notwithstanding its known or obvious 
    danger." 987 N.E.2d at 1192
    (alterations in original) (quoting 
    Papadopoulos, 930 N.E.2d at 151
    )
    3
    Dos Santos, we should note, was decided after the parties in
    this case submitted their summary judgment papers. In fact, Dos
    Santos was decided after defendants had already been granted
    summary judgment and plaintiff had moved for reconsideration, but
    one week before the district court denied that motion.
    4
    Landowners ordinarily have no duty to warn of hazards where
    the warning "would be superfluous for an ordinary intelligent"
    visitor. 
    Papadopoulos, 930 N.E.2d at 151
    .
    -16-
    (internal quotation marks omitted).    In this, Massachusetts has
    adopted the Restatement (Second) of Torts § 343A, comment f.5
    In Dos Santos, the court considered the scope of a
    landowner's duty to remedy under § 343A of the Restatement.      The
    Dos Santos court endorsed the conclusion that a landowner can and
    should anticipate a particular harm on a finding that a reasonable
    man in plaintiff's position would conclude the advantages of
    encountering the danger would outweigh the apparent risk.        987
    5
    This comment in the Restatement provides:
    There are, however, cases in which the possessor of
    land can and should anticipate that the dangerous
    condition will cause physical harm to the invitee
    notwithstanding its known or obvious danger. In such
    cases the possessor is not relieved of the duty of
    reasonable care which he owes to the invitee for his
    protection.    This duty may require him to warn the
    invitee, or to take other reasonable steps to protect
    him, against the known or obvious condition or activity,
    if the possessor has reason to expect that the invitee
    will nevertheless suffer physical harm.
    Such reason to expect harm to the visitor from known
    or obvious dangers may arise, for example, where the
    possessor has reason to expect that the invitee's
    attention may be distracted, so that he will not discover
    what is obvious, or will forget what he has discovered,
    or fail to protect himself against it. Such reason may
    also arise where the possessor has reason to expect that
    the invitee will proceed to encounter the known or
    obvious danger because to a reasonable man in his
    position the advantages of doing so would outweigh the
    apparent risk. In such cases the fact that the danger is
    known, or is obvious, is important in determining whether
    the invitee is to be charged with contributory
    negligence, or assumption of risk.      (See §§ 466 and
    496D.) It is not, however, conclusive in determining the
    duty of the possessor, or whether he has acted reasonably
    under the circumstances.
    Restatement (Second) of Torts § 343A cmt. f.
    -17-
    N.E.2d at 1193.      But it went on to say that "application of § 343A
    is not limited to situations where the plaintiff encounters the
    danger only after concluding the benefit of doing so outweighs the
    risk."   
    Id. The court
    recognized that § 343A contemplates that a
    lawful entrant's encounter with an open or obvious hazard may in
    some instances be a result of the entrant's own negligence.                  But
    even   if    the    plaintiff   was    negligent,    "[a]   plaintiff's     own
    negligence     in   encountering      the   danger   does   not   relieve   the
    landowner of a duty to remedy that danger where the plaintiff's
    negligent act can and should be anticipated by the landowner." 
    Id. at 1195.
        While Massachusetts recognizes comparative negligence,
    that does not necessarily negate a defendant's duty of care.                See,
    e.g., 
    Soederberg, 921 N.E.2d at 1025
    .
    Dos Santos held it was error for the trial court to
    instruct the jury that there was no duty of care merely because the
    risk of injury was obvious to visitors.              It explained that the
    defendant had set up a trampoline next to a shallow inflatable pool
    with the specific intent to enable the use that resulted in the
    injury, and the defendant knew both that the trampoline and pool
    were in fact being used in this manner and that the use was
    dangerous.     Dos 
    Santos, 987 N.E.2d at 1189-90
    .           The SJC remanded
    the case with directions to the trial judge to instruct the jury
    that "a landowner is not 'relieved from remedying open and obvious
    -18-
    dangers where he [or she] can or should anticipate that the
    dangerous   condition   will   cause   physical   harm   to   the   [lawful
    entrant] notwithstanding its known or obvious danger.'"              
    Id. at 1198
    (alterations in original) (quoting 
    Soederberg, 921 N.E.2d at 1024
    ).
    We agree with defendants that unlike Dos Santos, this is
    not a case in which the landowner expressly created a hazard in the
    form of the narrowing of the space caused by the takeout platform
    to induce activity which foreseeably would cause injury.              It is
    clear that the defendants did not intend this route to be a pathway
    and in fact had an established pathway to the pier and the boat
    along the northern side of the property.          This is an important
    distinction.     But we do not think this distinction entitles
    defendants to summary judgment for at least three reasons.
    First, even though the property owner in Dos Santos
    expressly created the hazard (hoping to benefit from it) and
    obviously knew of the hazard, the SJC did not itself declare there
    was a duty of care in that case but remanded for a new jury trial,
    considering the issues to be ones for a jury to resolve under
    particular instructions.       Thus, the intentional placement of the
    trampoline in Dos Santos was not dispositive.
    Second, defendants would be wrong to distinguish Dos
    Santos's emphasis on the defendant's own conduct as eliminating the
    foreseeability analysis aspect of duty of care cases.               The Dos
    -19-
    Santos court did not treat the landowner's specific intent that
    visitors would use the trampoline as a separate element of its
    holding.   Dos Santos continued to focus on foreseeability and not
    on intent as the ultimate issue. That is particularly so given Dos
    Santos's reliance on § 343A of the Restatement, which does not
    discuss intent at all and focuses solely on whether the landowner
    "should anticipate the harm" despite its obviousness.       Restatement
    (Second) of Torts § 343A; see also 
    id. cmt. f
    (explaining that
    landowner "is not relieved of the duty of reasonable care" when he
    "can and should anticipate that the dangerous condition will cause
    physical harm" despite its obviousness).          Dos Santos used the
    intent of the landowner as a means to show that the landowner there
    "would surely have reason to anticipate that persons would use" the
    hazardous condition "despite the 
    danger." 987 N.E.2d at 1197
    .
    Third, such a reading would be inconsistent with prior
    Massachusetts case law, cited in Dos Santos. We draw guidance from
    
    Jupin, 849 N.E.2d at 829
    , and from Quinn v. Morganelli, 
    895 N.E.2d 507
    (Mass. App. Ct. 2008), cited by Dos 
    Santos, 987 N.E.2d at 1192
    -
    93, 1195, 1196.   In Jupin, the court reversed the entry of summary
    judgment   for   the   defendant,   rejecting   the   holding   that   the
    defendant did not have a duty of care.      There, the property owner
    was held to owe a duty of care to a police officer shot with a gun
    taken from the owner's property when she had not ensured proper
    storage of the gun despite knowing that an individual with a
    -20-
    history of violence and mental instability had a key to her 
    house. 849 N.E.2d at 837-38
    .         The court stressed foreseeability, 
    id. at 836,
    and that there was no public policy reason not to impose a
    duty of care.
    In Quinn, the plaintiff sued defendant landowners after
    falling from a hallway into a sunken living room.                The hallway and
    the   living   room   were    covered   in   the       same   color   tile,   which
    plaintiff alleged created a hazard that the landowners had a duty
    to warn of or to remedy.       The Massachusetts Appeals Court reversed
    the trial court's grant of summary judgment to the defendants.
    
    Quinn, 895 N.E.2d at 511
    .        It explained that a jury would be able
    to conclude that the step created a foreseeable hazard, even though
    the record contained evidence of only one other person having ever
    fallen on it in the roughly twenty years since it was constructed.
    
    Id. at 508-09.
       The court went on to note that the jury could find
    the hazard open and obvious, that the record was "insufficiently
    developed" on that issue, and that the proper solution was to
    reverse the entry of summary judgment and remand for further
    proceedings,     which       could   include       a     special      verdict    or
    interrogatories submitted to the jury.             
    Id. at 511.
           Further, in
    Soederberg, the court explained that "whether a plaintiff's own
    conduct in encountering an ice hazard should bar recovery [is]
    generally a question for the jury to 
    decide." 921 N.E.2d at 1024
    .
    -21-
    IV.
    With these principles in mind, although the question is
    close, we conclude that this case is not suitable for resolution on
    summary judgment.       The record contains too many disputes of fact
    and too many disputed inferences, as in Quinn. The record does not
    establish that the defendants did not have any reason to anticipate
    crew members would attempt to cross the icy pier in this manner as
    the shortest way to get back to the boat.          A factfinder could infer
    that the landowners here knew the gap in the fence existed and knew
    the gap was used: it was obvious to observers.                 It was also
    foreseeable that the front gate would sometimes be locked and
    prevent crew members without keys from entering that way.           Indeed,
    Eastern Fisheries had to provide some twenty-five replacement keys
    per year to crew members who needed a key to enter the property by
    means other than the gap.
    The most difficult issue is whether the defendants knew
    or should have known that crew members would use the more hazardous
    route, particularly in these conditions -- that is, whether it was
    insufficiently foreseeable such that we may say as a matter of law
    there was no duty of care.
    Defendants argue that the record contains evidence of
    only two prior uses before the night in question, and that this is
    insufficient as a matter of law to put them on notice that crew
    members   might   use   it   to   cross    the   pier.   We   disagree   with
    -22-
    defendants for three reasons.   The first is that as a matter of law
    in Massachusetts, notice of even a single instance years before was
    relevant to defeat summary judgment in the Quinn case.    See 
    Quinn, 895 N.E.2d at 511
    .    The record here on prior use goes farther than
    that in Quinn.   For example, the two prior uses of the route across
    the pier involved crew members of two different vessels, who may
    have told others.    The prior uses were also during the winter, and
    they were recent, occurring roughly one month before the night of
    Cracchiolo's death.    Additionally, a factfinder could infer that
    the two instances in the record were only a partial sampling.
    Lazaro alone had entered through the gap twice in two winter
    seasons at the facility, and other crew members on both the
    Sunlight and the dozen or more other vessels that used the facility
    might have done the same.     A factfinder could also consider that
    the individuals entering through the gap were crew members on
    commercial fishing vessels, who would have had experience and
    confidence walking along slippery, waterside conditions, as that
    was inherent in their jobs.
    Second, while actual knowledge of a particular prior use
    is surely sufficient to prove that a landowner had "reason to
    anticipate" that use, Dos 
    Santos, 987 N.E.2d at 1197
    , actual
    knowledge is not necessary; liability exists if the defendant
    should have known about the use.        See, e.g., 
    Papadopoulos, 930 N.E.2d at 154
    (imposing duty to remedy "[i]f a property owner knows
    -23-
    or reasonably should know of a dangerous condition"). A factfinder
    could infer that the landowners knew or should have known the gap
    in the fence existed and was used, and that no obstacle except
    self-restraint prevented crew members from taking the risky route
    to the boat that Cracchiolo took. A factfinder might also conclude
    that the defendants were not negligent in relying on crew members
    to exercise such self-restraint.
    Third, the disputes as to inferences and insufficient
    development of the record counsel against resolution of the duty of
    care issue on summary judgment.      See 
    Quinn, 895 N.E.2d at 511
    ; see
    also Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of
    Bridge, Structural, Ornamental & Reinforcing Iron Workers, 
    536 F.3d 68
    , 80-81 (1st Cir. 2008); Merino Calenti v. Boto, 
    24 F.3d 335
    , 340
    (1st Cir. 1994) (reversing summary judgment where record was
    inadequate to allow determination of issues).              In light of Dos
    Santos, Jupin, and Quinn and the many disputes of fact and of
    inferences to be drawn, and acknowledging the difficulty of the
    issues, we think the landowners are not entitled to summary
    judgment, as a matter of law, on this record.
    On remand, the district court has discretion to submit
    the issue of foreseeability to the factfinder by using a special
    verdict,   cf.   
    Quinn, 895 N.E.2d at 511
    ,   or   to   allow   further
    development of the record.
    -24-
    V.
    For the reasons stated above, we reverse and remand.   No
    costs are awarded.
    -25-
    

Document Info

Docket Number: 12-2174, 13-1787

Citation Numbers: 740 F.3d 64

Judges: Lipez, Lynch, Stahl

Filed Date: 1/15/2014

Precedential Status: Precedential

Modified Date: 8/31/2023