Potvin v. Speedway LLC
264 F. Supp. 3d 337
D. Mass.2017Background
- Plaintiff Eileen Potvin slipped and fell at a Speedway self-service gas station on January 20, 2012; she believes her shoe heel caught in a concrete groove (positive limiting barrier, “PLB”) that encircles the pump island.
- Massachusetts fire-code guidelines required PLBs at self-service stations; DFS mandated five concentric grooves, minimum 3/4" wide and 3/4" deep; plaintiff’s expert measured the grooves at about 7/8"–1".
- PLBs are designed to contain a five-gallon spill within the fire-suppression-protected area; DFS approved the PLBs when the station was constructed and had no complaints that PLBs were tripping hazards.
- Plaintiff’s sole theory was failure to warn (or provide visual warnings such as paint/signage); her expert, a civil engineer, opined that visual warnings should have been provided but conceded limited direct experience with PLBs and relied on non-binding ASTM guidance.
- Speedway moved for summary judgment arguing (1) the PLB was not a hazard requiring a warning or remedy, (2) any hazard was open and obvious so no duty to warn, and (3) the expert opinion was unreliable; the court granted summary judgment for Speedway.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to warn of PLB condition | Potvin: Speedway should have warned/marked grooves (signs / paint) because grooves exceeded 1/2" and presented a hazard | Speedway: PLBs were required by law, visible, and not a hidden hazard; no duty to warn of open and obvious condition | Court: No duty to warn—condition was open and obvious as a matter of law; summary judgment for Speedway |
| Duty to remedy/open-and-obvious exception | Potvin: Excessive groove width created an unsafe condition warranting a warning or remedy | Speedway: Only a duty to warn/remedy if danger is not open and obvious; PLBs plainly visible | Court: Although landowners may have to remedy some open and obvious conditions, plaintiff’s only viable theory was failure to warn; open-and-obvious nature defeats liability |
| Expert admissibility and sufficiency | Potvin: Frederickson opined additional visual warnings were appropriate based on engineering practice and standards | Speedway: Frederickson lacks relevant experience, relied on non-adopted ASTM provisions, and his analysis is speculative | Court: Expert’s methodology is questionable under Rule 702, but court did not reach a final Daubert ruling because open-and-obvious doctrine independently disposes of the claim |
| Compliance with regulatory standards as defense | Potvin: Nonconforming groove width (measured >3/4") supports need for warning | Speedway: Compliance with DFS standards and prior approval undermines negligence; condition visible | Court: Compliance not dispositive but facts show PLBs were visible and approved; summary judgment for Speedway |
Key Cases Cited
- Dos Santos v. Coleta, 465 Mass. 148 (2013) (landowner’s duty to maintain property and warn of unreasonable dangers; no duty to warn open and obvious dangers)
- Davis v. Westwood Group, 420 Mass. 739 (1995) (common-law duty of reasonable care to lawful visitors; duty to maintain and warn)
- Papadopoulos v. Target Corp., 457 Mass. 368 (2010) (open-and-obvious danger relieves landowner of duty to warn)
- Lyon v. Morphew, 424 Mass. 828 (1997) (landowner need not provide maximum safety, only reasonable safety to those exercising ordinary care)
- Upham v. Chateau De Ville Dinner Theatre, 380 Mass. 350 (1980) (compliance with industry standards not conclusive proof of absence of negligence)