Jakobsen v. Massachusetts Port Authority

• Decision Date: 30 June 1975
• Docket Number: No. 74-1242,74-1242
• Citation: 520 F.2d 810
• Parties: Kai JAKOBSEN, Plaintiff-Appellee, v. MASSACHUSETTS PORT AUTHORITY, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 810

520 F.2d 810

Kai JAKOBSEN, Plaintiff-Appellee, v. MASSACHUSETTS PORT AUTHORITY, Defendant-Appellant.

No. 74-1242.

United States Court of Appeals, First Circuit.

June 30, 1975.

Peter D. Cole, Boston, Mass., with whom Badger, Sullivan, Kelley & Cole, Boston, Mass., was on brief, for appellant.

Robert V. Costello, Boston, Mass., with whom Schneider, Reilly, Zabin & Connolly, P.C., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal by the Massachusetts Port Authority from a verdict and judgment for personal injuries sustained by plaintiff when he fell on an icy sidewalk in front of the American Airlines terminal at Logan International Airport. Plaintiff contended that he was a business invitee injured on the Port Authority's premises due to the Port Authority's negligence, and on this basis the jury found the Port Authority liable and awarded $45,000. The Port Authority on appeal argues that by statute Port Authority liability was precluded here or limited to $5,000, and that in any event the evidence did not justify a finding of business invitee status or negligence.

We briefly state the facts in their aspects most favorable to plaintiff. See Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). On Sunday, February 15, 1970, plaintiff, a California resident, had been visiting his cousin in Acton, Massachusetts. At about 7 p. m. they departed for Logan International Airport, where plaintiff had a reservation on an American Airlines flight to New York. During the ride to the airport plaintiff noticed that the roads were icy and slippery. It was at about 8 p. m. when plaintiff's cousin stopped his car next to the curb in front of the entrance to the American Airlines terminal. Plaintiff got out, took several steps, slipped, fell, and injured himself. The sidewalk had no sand on it and was covered with a glaze of ice, clear as glass, one-half inch thick. There was some lighting, but it was poor. There had been intermittent periods of snowfall and freezing rain during the day, but the snow and rain had stopped at about 7 p. m. That day the Port Authority had received a number of calls about the slippery condition of sidewalks at Logan, including reports of people falling during the half hour before plaintiff was injured. About 1,000 people normally used the sidewalk in front of the American Airlines entrance during one hour on a typical Sunday night.

I

The Port Authority's main contention on appeal is that its liability is limited by Massachusetts law to at most $5,000. Under a provision in the statute creating the Port Authority, M.G.L. c. 91, App., § 1-23, the Port Authority may be liable for "defect or want of repair of ways" to the same extent as a municipal corporation would be under M.G.L. c. 84, § 15. ¹ See generally Opinion of the Justices, 334 Mass. 721, 727, 136 N.E.2d 223, 231 (1956). Section 15 limits liability to $5,000. The provision has been held as intended to provide an exclusive remedy for travelers injured because of a municipality's failure to meet its statutory obligation to keep ways "reasonably safe and convenient for travelers." Whalen v. Worcester Electric Light Co., 307 Mass. 169, 174-75, 29 N.E.2d 763, 767-68 (1940). The Port Authority asserts that the accident in this case occurred on a "way" within the meaning of the statute, and thus that plaintiff could not recover on a negligence theory but only for a defect, which plaintiff never alleged. And, it is further argued, since liability is limited as a matter of law to $5,000, the $10,000 amount in controversy necessary for diversity jurisdiction, 28 U.S.C. § 1332(a), was absent.

The Port Authority raised this defense for the first time in a motion for a directed verdict after the presentation of evidence, ² and in its requested instructions. The district court, without opinion, rejected the defense then and again upon consideration of a motion for judgment notwithstanding the verdict. We affirm not because of any position that we take on the purported statutory limitation, but because the Port Authority's failure to plead and its belated raising of the defense amounted, in our view, to a waiver thereof.

The Port Authority raised in its answer, besides a general denial, only the defenses of lack of statutory notice, contributory negligence, and assumption of risk. The defense in question was not identified until the close of evidence, and was fully articulated only in the motion for judgment notwithstanding the verdict. Under Rule 8(c), Fed.R.Civ.P., certain specified defenses and "any other matter constituting an avoidance or affirmative defense" must be pleaded affirmatively. While a statutory limitation on liability is not enumerated among the listed defenses, we think it falls within the Rule's residuary clause. The Port Authority's defense shares the common characteristic of a bar to the right of recovery even if the general complaint were more or less admitted to. ³ See C. Wright & A. Miller, Federal Procedure and Practice, § 1270, at 292 (1969). Compare Rule 9(a), Fed.R.Civ.P. (lack of capacity to be sued may be raised only by "specific negative averment").

The ordinary consequence of failing to plead an affirmative defense is its forced waiver and its exclusion from the case. See Wright & Miller, supra, § 1278, at 339 & n. 29, and cases cited therein.

Doubtless, when there is no prejudice and when fairness dictates, the strictures of this rule may be relaxed. Under Rule 15 the district court may and should liberally allow an amendment to the pleadings if prejudice does not result. And if an affirmative defense is actually tried by implied consent, the pleadings may be later made to conform. Fed.R.Civ.P. 15(b). But the defense in question was not tried by implied consent. Some of the evidence received at trial was relevant to it as well as to other issues for example, exhibits showing the layout of roads at the terminal and of the spot where plaintiff fell. But plaintiff had no reason to understand that this issue was in the process of being tried. Consent cannot possibly be implied under such circumstances. As for treating the untimely defense as a late amendment that should have been allowed, it presented issues of such complexity and fundamental importance to the conduct of the litigation that both plaintiff and the court could not, in fairness, be forced to forego the advance notice they were entitled to under Rule 8(c). See generally Gaines W. Harrison & Sons, Inc. v. J. I. Case Co., 180 F.Supp. 243, 247 (E.D.S.C.1960); Bernard v. United States Aircoach, 117 F.Supp. 134, 137-38 (D.Cal.1953).

A sense of the magnitude, as well as the lack of clarity, of the Port Authority's eleventh hour claim can best be grasped from a brief analysis of the three major questions which would have to be confronted to resolve it. First would be whether the place where plaintiff fell was a "way" within the meaning of the statute. Municipal sidewalks running next to public streets and highways have been generally held to be ways, but it is unclear that the concrete strip or apron forming an entrance to the American Airlines terminal would be regarded as a general avenue for the public rather than as something else. See, e. g., Dakin v. City of Somerville, 262 Mass. 514, 160 N.E. 260 (1928); Goodwin v. City of Fall River, 228 Mass. 529, 117 N.E. 796 (1917); Mason v. Inhabitants of Town of Winthrop, 196 Mass. 18, 81 N.E. 644 (1907); Stone v. Inhabitants of the Town of Attleboro, 140 Mass. 328, 4 N.E. 570 (1885). Conceivably the Massachusetts legislature intended the statute at issue to govern the Port Authority's operation of Sumner Tunnel, Mystic River Bridge, and roadways and their sidewalks, but not to govern the operation of airport entrances. The provision governing defects on ways of the Port Authority closely parallels a provision in the statute enacting the Massachusetts Turnpike Authority four years earlier, in 1952, M.G.L. c. 81, App., § 1-15. ⁴

Second would be whether the slipperiness of the walk was a "defect" or "want of repair" as those terms have been used under Massachusetts law. See, e. g., Whittaker v. Town of Brookline, 318 Mass. 191, 60 N.E.2d 85 (1945); Clohecy v. City of Haverhill, 299 Mass. 378, 12 N.E.2d 834 (1938); Gregoire v. Lowell, 253 Mass. 119, 148 N.E. 376 (1925). A defect normally does not exist if a natural accumulation of snow or ice, without anything else, causes the dangerous condition and accident. The ice here had been trodden, and to that extent may not have been a mere natural accumulation. This issue is complicated by the fact that modern precedents deal with municipalities, which by statute have been exempted from unsafe conditions due solely to snow or ice. M.G.L. c. 84, § 17. ⁵ See, e. g., Johnson v. Town of Orange, 320 Mass. 336, 69 N.E.2d 587 (1946). The enabling act for the Port Authority and that for the Turnpike Authority refer only to sections 15, 18, and 19, see notes 1 & 3 supra, and not to section 17. The intention of this omission and its effect on what constitutes a defect here are unclear.

Finally, and most important, would be the difficult question whether section 15, as applied to the Port Authority, was meant to be an exclusive remedy for an injury such as plaintiff's, or whether the Port Authority was also to be liable at common law for negligence. In the case of municipalities, section 15 has been held to be an exclusive remedy. Whalen, supra. But that holding was based on the fact that section 15 was part of an overall scheme placing a duty on municipalities to keep highways and townways "reasonably safe and convenient for travelers." M.G.L. c. 84, § 1. Absent this statutory duty, municipalities would be exempt from tort liability in the performance of a public or "governmental" function such as...