Cracchiolo v. E. Fisheries, Inc.

• Decision Date: 15 January 2014
• Docket Number: 13–1787.,Nos. 12–2174,s. 12–2174
• Citation: 740 F.3d 64
• Parties: Carla CRACCHIOLO, Individually and as Administratrix of the Estate of Giuseppe Cracchiolo, Plaintiff, Appellant, v. EASTERN FISHERIES, INC.; RCP Realty, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

740 F.3d 64

Carla CRACCHIOLO, Individually and as Administratrix of the Estate of Giuseppe Cracchiolo, Plaintiff, Appellant,

v.EASTERN FISHERIES, INC.; RCP Realty, Defendants, Appellees.

Nos. 12–2174, 13–1787.

United States Court of Appeals,First Circuit.

Jan. 15, 2014.

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.

Before LYNCH, Chief Judge, STAHL and LIPEZ, Circuit Judges.

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 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; 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 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 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.

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 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...