FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Judith G. Dein, U.S. Magistrate Judge.
G. Mummolo, with whom Steven Kfoury and Iannella and Mummolo
were on brief, for appellant.
A. Darling, with whom Devine C. Nwabuzor and Litchfield Cavo
LLP were on brief, for appellee.
Torruella, Selya and Lynch, Circuit Judges.
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
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.
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
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
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).
federal court, the parties consented to proceed before a
magistrate judge. 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).
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
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. StudentCity.com, Inc., 854 F.3d 97, 101
(1st Cir. 2017).
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.
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