A federal judge today rejected arguments from the operator of a Back Bay garage that even if one of its employees left a large drain hole uncovered, it wasn't liable for a man's injuries when he tripped in it because the hole was so obvious the guy should've known to stay away from it.
US District Court Judge Richard Stearns's ruling means that George Winer can go to trial to make his case for damages against Towne Park, LLC for the "serious and significant" injuries he says he suffered when he tripped on the uncovered drain at the Marriott Copley Hotel garage on May 16, 2014.
At the time, Winer worked for Dollar Rental Car, which operated a booth at the hotel and had several reserved spaces in the hotel garage. In his suit, originally filed in state court, Winer alleged that while walking in the garage, he caught his foot in the drainage hole, with a diameter of eight inches, because an employee at Towne, which was responsible for maintaining the garage, had failed to replace its cover after cleaning out the drain.
Towne asked Stearns to just throw Winer's case out, in part because:
Towne argues that Winer cannot recover because the danger posed by the exposed drain hole was open and obvious.
In its request for summary judgment, Towne elaborated:
It is well established that a landowner's or possessor's duty to protect lawful visitors against dangerous conditions on his property ordinarily does not extend to dangers that would be obvious to persons of average intelligence. O'Sullivan v. Shaw, 431 Mass. 201, 204 (2000). They are relieved of the duty to warn of open and obvious dangers on the premises "because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from such blatant hazards." Id. Here, if the drain cover was off, it would be blatantly obvious to a person exercising reasonable care while walking through space number 8. ...
Plaintiff had no trouble seeing in the Garage and the drain hole was not hidden by any obstructions. Had the Plaintiff exercised reasonable care in proceeding through space number 8 to the car parked in space number 9, he surely would have seen that the drain cover was next to the drain. A person of ordinary intelligence would have perceived it and avoided it, and, therefore, any further warning would be superfluous.
Nice try, but nope, Stearns replied - in Massachusetts, property owners and maintainers have "a duty of care" to ensure their property does not cause an undue risk:
Negligence consists of a breach of a duty of care that directly and proximately causes harm to a plaintiff. Delaney v. Reynolds, 63 Mass. App. Ct. 239, 241 (2005). The existence of a duty of care (a prerequisite for a finding of negligence) is a question of law. Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 40 (2009).
Here, as a matter of law, Towne owed Winer a duty of care arising out of its contractual obligation to clean and maintain the garage. Even if the uncovered drain was open and obvious, Towne would only be excused of its duty to warn, not its duty of care. See Judge v. Carrai, 77 Mass. App. Ct. 803, 806 (2010) ("[T]he fact that a danger is open and obvious does not operate to negate a duty of care."). It is undisputed that Towne employees operated the garage twenty-four hours a day and, at times, removed drain covers when cleaning. Winer testified that Josh Jones, a Towne account manager, told him after the fall that a Town employee named "Adam must have left a cover off after cleaning the Garage."
Stearns also rejected Towne's argument that Winer failed to prove that it was to blame for the open hole, because Marriott owns the garage and maybe one of its workers was responsible. That, Stearns said, is a question for a jury to decide, not for a judge to use as a reason to dismiss a suit.