Fithian v. Reed & Reed, 99-1898

• Decision Date: 09 February 2000
• Docket Number: No. 99-1898,99-1898
• Citation: 204 F.3d 306
• Parties: (1st Cir. 2000) STEPHEN C. FITHIAN, JR., p.p.a. STEPHEN C. FITHIAN, SR., ET AL., Plaintiffs, Appellants, v. EDWARD REED AND MARTHA REED, Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 306

204 F.3d 306 (1st Cir. 2000)

STEPHEN C. FITHIAN, JR., p.p.a. STEPHEN C. FITHIAN, SR., ET AL., Plaintiffs, Appellants, v. EDWARD REED AND MARTHA REED, Defendants, Appellees.

No. 99-1898

United States Court of Appeals for the First Circuit

Heard February 9, 2000

Decided February 29, 2000

Thomas J. Callahan, with whom James J. McGovern and McGovern & Sullivan were on brief, for appellants.

David M. O'Connor, with whom John E. Matosky and O'Connor & Associates were on brief, for appellees.

Before Selya, Boudin and Lynch, Circuit Judges.

SELYA, Circuit Judge.

In this case, the district court concluded as a matter of law that the risk of a neighbor's snowblower discharging snow and ice against a dining room window and breaking it, injuring a toddler standing inside, was unforeseeable, and that the homeowners therefore did not breach their duty of reasonable care. The plaintiffs appeal. Finding no evidence of any precaution that either defendant could or should have taken to avoid this unfortunate accident, we affirm.

As the summary judgment standard requires, we recount the facts in the light most hospitable to the non-movants (here, the plaintiffs). See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). In January 1996, Lisa Fithian and her two young children, Floridians all, were visiting her parents, Edward and Martha Reed, in Hingham, Massachusetts. On an inclement morning, John Zofchak, the Reeds' neighbor, trying to be helpful, undertook to clear their driveway with his snowblower (despite the fact that two cars were parked in the area). Snow was a novelty to the youngsters, so Mrs. Reed (while Mrs. Fithian was upstairs) encouraged them to join her at the family room window and watch the snowblower in operation.

After Mrs. Fithian returned, Mrs. Reed went outside in hopes of thanking Mr. Zofchak for the unsolicited favor. Not wanting to approach the snowblower too closely for fear of injury, Mrs. Reed stood in front of the house for roughly fifteen minutes and vainly attempted to catch Mr. Zofchak's attention. Meanwhile, Mrs. Fithian, desiring to give the fascinated children a better view of the snowblowing activity, brought them into the dining room (where the windows were closer to the driveway).

Mr. Reed entered the dining room shortly thereafter. At that point, Mr. Zofchak had begun to clear a narrow strip of driveway between the parked cars and the residence. Since the presence of the vehicles prevented him from directing the discharge to the left, he angled it to the right (i.e., toward the house). A few seconds later, the dining room window shattered and flying glass struck and severely injured three-year-old Stephen Fithian, Jr.

Invoking diversity jurisdiction, see 28 U.S.C. § 1332(a), Stephen and his parents sued the Reeds in the United States District Court for the District of Massachusetts.¹ Following pretrial discovery, the defendants moved successfully for summary judgment. This appeal ensued.

We review orders granting or denying summary judgment de novo. See Garside, 895 F.2d at 48. Summary judgment is appropriate if, after marshaling the evidence in the light most favorable to the non-movant, no genuine issue of material fact exists and the record reveals that the movant is entitled to judgment as a matter of law. See Woods-Leber v. Hyatt Hotels of P.R., Inc., 124 F.3d 47, 49-50 (1st Cir. 1997); Garside, 895 F.2d at 48; see also Fed. R. Civ. P. 56(c). State law supplies the substantive rules of decision in diversity cases, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Woods-Leber, 124 F.3d at 50, and the parties agree that Massachusetts law governs in this instance.

Under Massachusetts law, a tort plaintiff must show that (1) the defendant owed him a duty, (2) the defendant breached that duty, (3) the breach constituted a proximate cause of the ensuing harm, and (4) the breach caused actual injury. See Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir. 1990); Swift v. United States, 866 F.2d 507, 508-09 (1st Cir. 1989). Although such matters most often comprise grist for the jury's mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome. See Woods-Leber, 124 F.3d at 51; see also Mullins v. Pine Manor College, 449 N.E.2d 331, 338 (Mass. 1983); Roderick v. Brandy Hill Co., 631 N.E.2d 559, 560 (Mass. App. Ct. 1994). This is such a case: as the district court ruled, there is no way in which a rational factfinder, on this record, supportably could conclude that the defendants breached an actionable duty to the plaintiffs. We explain briefly.

As homeowners and hosts, the defendants had a duty to take into account the extant circumstances (including those known to them and those of which they should have known) and to maintain their property in a reasonably safe condition. See Mounsey v. Ellard, 297 N.E.2d 43, 52 (Mass. 1973); Polak v. Whitney, 487 N.E.2d 213, 215 (Mass. App. Ct. 1985). It was, therefore, incumbent upon them to act reasonably in regard to factors such as the likelihood of injury to persons foreseeably upon the premises, the seriousness of any potential injury, and the burdens associated with risk avoidance.

This standard -- reasonable care under all the circumstances -- is a flexible one. As the plaintiffs suggest, it may at times involve a duty to prevent foreseeable injury caused by a third person who has come upon a defendant's premises. See Flood v. Southland Corp., 616 N.E.2d 1068, 1075 (Mass. 1993); Jesionek v. Massachusetts Port Auth., 378 N.E.2d 995, 997 (Mass. 1978). On other occasions, it may impose an obligation to warn guests of an unreasonable, nonobvious danger of which the host is aware. See Polak, 487 N.E.2d at 215-16. The standard does not, however, bind homeowners to anticipate and guard against "what is unusual and unlikely to happen, or what, as is sometimes said, is only remotely and slightly probable." Zompanti v. Ferguson, 142 N.E.2d 903, 904 (Mass. 1957) (quoting Falk v. Finkelman, 168 N.E. 89, 90 (Mass. 1929)). In fine, the standard does not make a homeowner an insurer of a guest's safety, nor does it require her to exercise extreme prudence, employ heroic measures, or display utter prescience. See Toubiana v. Priestly, 520 N.E.2d 1307, 1310 (Mass. 1988).

The touchstone, then, is ordinary prudence -- and the critical question becomes "whether the jury reasonably could have concluded that, in view of all the circumstances, an ordinarily prudent person in the defendant's position would have taken steps, not taken by the defendant, to prevent the accident that occurred." Id. In most cases (though not always), this question correlates with the foreseeability of the risk of harm, for the more foreseeable the injury, the higher society's expectations that reasonable people will take precautions. See Whittaker v. Saraceno, 635 N.E.2d 1185, 1188-89 (Mass. 1994) (holding that society should not place the burden of preventing a violent crime on a property owner without proof that the owner knew or should have known of danger and possible preventive steps, even though crime is always possible and to a certain extent foreseeable); Mounsey, 297 N.E.2d at 52 (explaining that the duty of care is defined in part by the likelihood of injury).

In this case, our canvass of the record convinces us that no reasonable jury could have determined that the defendants failed to take any precaution that ordinary prudence demanded. To be sure, the plaintiffs assert conclusorily that Mr. Reed should have monitored the use of a dangerous instrumentality on his property -- but the record does not disclose either that Mr. Reed had advance notice of Mr. Zofchak's intentions or that he had any practical opportunity to stop Mr. Zofchak in the act. Even on the plaintiffs' version of the facts, Mr. Reed became aware that snowblowing was in progress only moments before the accident occurred.

Mrs. Reed likewise lacked both notice and any realistic opportunity to alter the course of events. In all events, the record is uncontradicted that she tried without success to hail Mr. Zofchak. Given the swirling snow, the noise made by the machinery, and the danger inherent in approaching the running snowblower, this lack of...