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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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.
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(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.
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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
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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
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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
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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.
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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
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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
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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.
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V.
For the reasons stated above, we reverse and remand. No
costs are awarded.
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