Opinion
CIVIL ACTION NO. 03-10130-RWZ
December 29, 2003
Memorandum of Decision
In 2000, defendant Main Street Textiles, LP ("Main Street") hired Three D Rigging Company ("Three D") to remove textile machinery from its mill in Fall River, Massachusetts. On July 31, 2001, plaintiff Gary Pelletier, a rigger at Three D, was severely injured while moving a heavy piece of equipment on his forklift truck. On January 17, 2003, plaintiff filed suit against the five named defendants claiming that their negligence caused his injuries. Defendants now move for summary judgment.
In negligence law, there is no duty to warn against dangers that are obvious to persons of ordinary intelligence. O'Sullivan v. Shaw, 726 N.E.2d 951, 954 (Mass. 2000); Lyon v. Morphew, 678 N.E.2d 1306, 1310 (Mass. 1997). Here, plaintiff knew about the oil on the floor. In his Complaint, he alleges that three or four weeks prior to his accident, Main Street transferred its oil janitors out of the mill, which resulted in a build-up of oil on the floor. (Compl. at 17). He also knew that steel plates covered about seventy percent of the floor, so that there were uneven surfaces where the steel plate was juxtaposed to the exposed wood floor. (Compl. at 16). However, defendant may, nonetheless, be negligent if plaintiff's injuries were foreseeable-a question reserved for the trier of fact. Murgo v. Home Depot USA. Inc., 190 F. Supp.2d 248 (D. Mass. 2002) ("Notwithstanding the assumed open and obvious character of a hazard, the defendant is liable for the plaintiff's injuries if his injuries were foreseeable."). Likewise, plaintiffs reasonableness in dealing with the risk goes to the extent of his contributory fault and is a question of fact. O'Sullivan v. Shaw, 726 N.E.2d 951, 958 n. 3 (Mass. 2000).
Defendants contend that the "oil issue is a red herring" because Three D was responsible for cleaning up the spilled oil. (Reply at 4-5). However, plaintiff alleges that Main Street assumed the responsibility by engaging oil janitors and after they were transferred, Main Street still controlled the oil clean-up when it forbade Three D's attempts to clean the oil with Speedi-Dry. (Compl. at 17).
Relying on Bavuso v. Caterpillar Industrial. Inc., 563 N.E.2d 198 (Mass. 1990), defendants further contend that the operation of a forklift without a protective overhead canopy constitutes an open and obvious danger and thereby negates any duty to warn. However, the Bavuso plaintiff was suing the forklift manufacturer for failure to warn. In the present case, plaintiff is claiming negligence by defendants for failure to maintain a safe work environment. While the operation of the forklift without the protective canopy may be evidence of plaintiffs contributory negligence, it does not, as a matter of law, negate any duty the defendants may have to provide a safe work environment.
Defendants also assert that they are not liable because none of them controlled plaintiffs work-a fact disputed by plaintiff. They contend that plaintiff is barred from recovery because his negligence was greater than theirs. Although defendants acknowledge that negligence is a question for the trier of fact, they argue that the Court can determine the issue when "only one rational inference can be drawn and that is an inference of contributory negligence or want of due care." Kopaczskki v. Eastern Air Lines. Inc., 300 N.E.2d 923, 924 (Mass.App.Ct. 1973) (quoting Duggan v. Bay State Street Railway, 119 N.E. 757, 760 (Mass. 1918)). Clearly, disputed questions of fact abound, and it is inappropriate for the Court to apportion fault. Similarly, there are factual issues concerning the status of Joan Fabrics Corporation as a joint venture partner and/or a general partner of Main Street.
Accordingly, defendant's Motion for Summary Judgment is DENIED.