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Potvin v. Speedway LLC

United States Court of Appeals, First Circuit

June 4, 2018

EILEEN POTVIN, Plaintiff, Appellant,
SPEEDWAY LLC, Defendant, Appellee.


          Dante G. Mummolo, with whom Steven Kfoury and Iannella and Mummolo were on brief, for appellant.

          Mark A. Darling, with whom Devine C. Nwabuzor and Litchfield Cavo LLP were on brief, for appellee.

          Before Torruella, Selya and Lynch, Circuit Judges.

          SELYA, Circuit Judge.

         This appeal arises out of a lawsuit brought by a customer, plaintiff-appellant Eileen Potvin, against the proprietor of a self-service gas station in Tewksbury, Massachusetts (the Station). The facts are straightforward (and largely undisputed).

         On the afternoon of January 20, 2012, the plaintiff, accompanied by her boyfriend, drove her car into the Station, which was then owned and operated by Hess Corporation (Hess). She stopped alongside a gas pump, with the driver's side adjacent to the pump. While her boyfriend went inside to pay for the gasoline, the plaintiff exited her vehicle and went in search of a squeegee to clean her windshield. Unable to find one, she began walking backwards toward her car. She asserts that the heel of her right shoe got caught in a groove in the pavement, causing her to fall.

         As matters turned out, the groove was part of a series of grooves, known in the trade as positive limiting barriers (PLBs), which are required by Massachusetts law.[1] Each PLB is comprised of a series of five concentric grooves cut into the concrete surrounding a gas pump. Because the purpose of a PLB is to contain a gasoline spill of up to five gallons, each groove must be at least three-quarters of an inch wide and three-quarters of an inch deep. The record makes pellucid that the PLBs at the Station satisfied this specification.

         The plaintiff's fall caused bodily injury. As a result, she filed suit against Hess in a Massachusetts state court. She claimed that Hess was negligent because the presence of the PLBs constituted a hazardous condition and Hess failed to warn of that hazard. Citing diversity of citizenship and the existence of a controversy in the requisite amount, Hess removed the action to the federal district court. See 28 U.S.C. §§ 1332(a)(1), 1441(a).

         Once in federal court, the parties consented to proceed before a magistrate judge.[2] See id. § 636(c); see also Fed.R.Civ.P. 73(b). While the suit was pending, defendant-appellee Speedway LLC (Speedway) acquired certain of Hess's assets, including the Station. In connection with this transfer of interest, Speedway assumed certain of Hess's liabilities, including the responsibility for the plaintiff's lawsuit. To facilitate this assumption of liability, Hess moved to substitute Speedway as the party-defendant. See Fed.R.Civ.P. 25(c). The district court granted this motion. There is no basis for any suggestion that the substitution of Speedway for Hess affected the district court's jurisdiction. Cf. Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S. 426, 428-29 (1991) (per curiam) (holding that addition of non-diverse party under Fed.R.Civ.P. 25(c) did not deprive federal court of jurisdiction).

         Following the close of discovery, Speedway sought summary judgment. See Fed.R.Civ.P. 56(a). Although the plaintiff opposed Speedway's motion, the district court granted it. See Potvin v. Speedway LLC, 264 F.Supp.3d 337, 345 (D. Mass. 2017). The court concluded that the PLBs, if dangerous at all, presented an open and obvious danger, so that the Station had no duty to warn customers about that danger. See id. at 344-45. This timely appeal ensued.

         We recognize, of course, that a court may enter summary judgment only if, after appraising all of the evidence in the light most favorable to the nonmovant and drawing all reasonable inferences to her behoof, the record discloses no genuine issue of material fact and indicates that the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Fithian v. Reed, 204 F.3d 306, 308 (1st Cir. 2000). We review the entry of summary judgment de novo, constrained to assay the record in the same manner as the ordering court. See Chung v., Inc., 854 F.3d 97, 101 (1st Cir. 2017).

         We recognize, too, that in a case founded on diversity jurisdiction, state law supplies the substantive rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Gomez v. Stop & Shop Supermkt Co., 670 F.3d 395, 397 (1st Cir. 2012). Here, the parties agree that Massachusetts law controls.

         To prevail on a claim for negligence under Massachusetts law, "a plaintiff must carry the burden of proving the elements of duty, breach, causation, and damages." Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014). Although the issues of breach, causation, and damages typically are determined by a factfinder, see Cracchiolo v. E. Fisheries, Inc., 740 F.3d 64, 69 (1st Cir. 2014), the existence vel non of a legally cognizable duty is typically a question of law, with which the court must ...

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