Potvin v. Speedway LLC

• Decision Date: 08 September 2017
• Docket Number: CIVIL ACTION NO. 14–10598–JGD
• Citation: 264 F.Supp.3d 337
• Parties: Eileen POTVIN, Plaintiff, v. SPEEDWAY LLC, Defendant.
• Court: U.S. District Court — District of Massachusetts

264 F.Supp.3d 337

Eileen POTVIN, Plaintiff,

v.SPEEDWAY LLC, Defendant.

CIVIL ACTION NO. 14–10598–JGD

United States District Court, D. Massachusetts.

Signed September 8, 2017

Dante G. Mummolo, Iannella & Mummolo, Boston, MA, for Plaintiff.

Daniella Massimilla, John J. Jarosak, Litchfield Cavo LLP, Lynnfield, MA, for Defendant.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Judith Gail Dein, United States Magistrate Judge

I.INTRODUCTION

The plaintiff, Eileen Potvin, has brought this negligence action against Speedway LLC, the operator of a gas station on Andover Street in Tewksbury, Massachusetts.Ms. Potvin fell and injured herself when, she believes, the heel of her shoe got caught in a groove, known as a positive limiting barrier ("PLB"), which encircled the gas pump.The PLB is required by Massachusetts law.This matter is before the court on the defendant's Motion for Summary Judgment.(DocketNo. 57).Therein, Speedway contends that it is entitled to judgment as a matter of law because (1) the PLB was not a hazard which required a warning or remedy, (2) even if it was a hazard, Speedway owed no duty to warn of such an open and obvious hazard, and (3)plaintiff failed to establish that Speedway breached its duty of care because her expert's opinion "is mere guesswork that is wholly unsupported by science or data."(Id. ).For the reasons detailed herein, the undisputed facts establish that Speedway is entitled to judgment as a matter of law, and the defendant's motion for summary judgment is ALLOWED.

II.STATEMENT OF FACTS¹

The following facts are undisputed unless otherwise indicated.

The Accident

Eileen Potvin alleges that on January 20, 2012, between 2:30 p.m. and 3:00 p.m., she was injured when she tripped and fell at the Speedway self-service gas station and convenience store located on Andover Street in Tewksbury, Massachusetts.(DF¶ 1;PF¶ 1).On the day of the accident, the plaintiff picked up her boyfriend at work, and then stopped at the Speedway to purchase gas.(DF¶ 2;PF¶ 2).She pulled up to a gas pump, with the driver's side near the pump, got out of her car and walked toward the front of her car to look for a squeegee to clear her car windshield.(DF¶ 3;PF¶ 3).Her boyfriend went inside to pay for the gas, which he intended to pump when he returned.(DF¶ 4;PF¶ 3).

Ms. Potvin was unable to locate a squeegee, so she reversed direction, and while walking backwards toward her car, lost her balance and fell, landing on her right hip.(DF¶¶ 5–6;PF¶ 4).Ms. Potvin did not actually see how she fell, but she believes that the side of the heel of her right shoe "got wedged" in a groove in the concrete.(DF¶¶ 5–8;PF¶ 4).The groove is known as a positive limiting barrier ("PLB") and is required by Massachusetts law.(DF¶ 9;PF¶ 6).

Positive Limiting Barriers

At the time of the accident, 527 CMR § 5.08(5) authorized the Department of Fire Services("DFS" or "Fire Department") to approve plans for self-service gas stations in Massachusetts.(DF¶ 10;PF¶ 7).²The Fire Department required that PLBs be installed at all self-service gas stations in the Commonwealth prior to those gas stations being approved for operation.(DF¶ 11;PF¶ 8).PLBs are grooves in the concrete pad surrounding the dispensing island and the dispensers.(DF¶ 12;PF¶ 9).They are designed to contain a five gallon spill of flammable liquids within the area of the outer groove of the PLB, as that is the limit of the area protected by the fire suppression system.(DF¶ 13;PF¶ 9).According to DFS guidelines, there must be five concentric grooves surrounding the gasoline pumps, and the grooves must be cut to a minimum of three quarters of an inch in width, and three quarters of an inch in depth.(DF¶ 14;PF¶ 10;Def. Ex. B (Beaudin Dep.)at 39–40).³The PLBs at Speedway measured seven-eighths of an inch wide, according to the plaintiff's expert.(PF¶ 17).The guidelines do not prohibit the painting of the PLBs a different color.(Id.¶ 11).While certain signs are required by Department of Fire Services' guidelines, no signs warning of the existence of PLBs are either required, or prohibited, by the guidelines.(SeeDef. Ex. B (Beaudin Dep.) atEx. 1, ¶¶ 24–26;PF¶ 12;DF¶ 20).

The PLB requirement was in effect when the prior owner of the property at issue in this litigation renovated the site in 1998.(DF¶ 16).The Fire Department had approved the design of the PLBs before the gas station opened, and its approval remained in effect after the property was transferred to Speedway.(Id.¶¶ 17–19).

Reading the record in the light most favorable to the plaintiff, in the two years prior to Ms. Potvin's fall, there were two incidents reported to Speedway in all of Massachusetts involving people tripping or falling in the area of "grooves" near the gas pumps and/or the PLBs.⁴(SeePl.Ex. 2(Def. Second Suppl.Resp. to Pl. Req. for Prod. of Docs.)at Suppl.Resp. 5B).On September 13, 2010, a woman at a Saugus gas station reported having her heel caught in a cement groove when she was getting into a vehicle on the passenger side at a gas pump.(Id. at "Customer Statement of Incident").On December 6, 2010, a woman at a gas station in Worcester reported that she had "tripped on the grooves by pump 3."(Id. at "Customer Information & Statement").According to the representative of the Fire Department who was deposed in this case, the Fire Department had not had any complaints that the PLBs were tripping hazards.(Def. Ex. B (Beaudin Dep.)at 37).

Plaintiff's Expert

The plaintiff has designated Steven Frederickson as her expert.He is a licensed civil engineer who is employed by the City of Beverly as a director of municipal inspections, and is also self-employed as an engineering consultant.(PF¶¶ 13–14).Mr. Frederickson has had no experience with PLBs or, apparently, self-service gas stations, but extrapolated from regulations concerning other public spaces to evaluate the conditions at issue in this litigation.(SeeDF¶ 36).Mr. Frederickson concluded that optimally the grooves should have been 1/2? wide but the regulations required that they be 3/4? wide.He found that the grooves were, in fact, 7/8? – 1? wide, and opined that as a result additional signage and/or visual warnings should have been provided.(SeePl. Ex. 6 (Frederickson Report)at 9).The plaintiff does not base her negligence claim on the width of the grooves in and of themselves.Rather, she argues, in light of the "exceeded width of the grooves, signage and/or a visual warning, such as a painted surface, should have been provided to pedestrians."(Pl. Mem.at 4).As detailed below, Mr. Frederickson's opinion does not defeat the motion for summary judgment since there was no duty to warn against the obvious and open condition as a matter of law.

Mr. Frederickson opined that pursuant to the definitions in the Massachusetts Building Code, the area of the PLBs qualifies as an "exit discharge" since it is "part of the means of egress from the building," and that as an "exit discharge" the Building Code requires that "it must be maintained."(SeeDF¶ 21;Pl. Ex. 6at 3).⁵He then concluded that, since the Building Code"is silent on what constitutes maintenance[,]"he would look to the American Society of Testing and Materials (ASTM) Standard Practice of Safe Walking Surfaces (ASTM F–1637), because it is "[t]he most widely recognized standard for safe walking surfaces[.]"(Pl. Ex. 6at 3).However, Mr. Frederickson admits that the ASTM standards do not apply to PLBs, he does not know whether Massachusetts has adopted any portion of the ASTM's various standards, and the ASTM does not have a section on grooves.(SeeDF¶ 25).

Mr. Frederickson opined that the ASTM standard applicable to grates was relevant in the instant case.(Pl. Ex. 6at 5).A grate is defined as "framework of latticed or parallel bars that prevents large objects from falling through a drainage inlet but permits water and some debris to fall through the slots."(Id. )The ASTM standard provides that grates should not have openings wider that 1/2? in the direction of predominant travel.(Id. )As noted above, Fire Department regulations required that the PLB grooves be 3/4? wide, and 3/4? deep.Other than saying that they are "similar," Mr. Frederickson does not explain why the requirements for grates should apply to PLBs.Such an explanation is needed because the two are not the same.For example, while spacing of the grate may be of particular significance since shoe heels can fall through grates into open space, they cannot fall through concrete grooves.In any event, Mr. Fredrickson did implicitly recognize that DFS guidelines relating to PLBs would take precedence over ASTM standards, and does not challenge the fact that the width of the grooves should have complied with Fire Department standards.(SeeDF¶ 27;Def. Ex. C (Frederickson Dep.)at 70).

According to Mr. Frederickson, he"did not see any sign of unusual deterioration of the pavement, other than minor worn edges of the grooves."(Pl. Ex. 6at 3).However, he also found that the grooves at the property ranged from 7/8? - 1+? wide.He concluded that "[g]iven the recognized danger of a walking surface with grooves in excess [o]f 1/2?, the 3/4? requirement of DFS should not have been exceeded."(Pl. Ex. 6at 9).Significantly, neither Mr. Frederickson nor the plaintiff argue that the defendant was negligent in having the slightly wider grooves, and there is no contention that the fact that the grooves may have been 1? as opposed to 3/4? wide caused the plaintiff's accident.Rather, it is Mr. Frederickson's opinion that "[g]iven the hazard presented by the positive limiting barrier,""signage and/or visual warning (such as a painted surface) should have been provided to pedestrians."(Pl. Ex. 6at 9, ¶ 5;see alsoPl. Mem.at 8("Defendant breached a duty to warn the Plaintiff of the hazard posed by...