What do you mean “dangerous”?

Tewksbury, Massachusetts isn’t a big place. It still generated an interesting appeal on public liability though.

On 20 January 2012 Eileen Potvin and her boyfriend stopped to get fuel at a service station in Tewksbury. While her boyfriend was paying for the fuel she went looking for a squeegee to clean the windshield. She began to walk towards the car backwards (for reasons which were not explained). The heel of her shoe caught in a groove in the paving. She fell and was injured. The groove was part of a legally mandated barrier designed to catch fuel spills.

1907 Andover Street, Tewksbury MA (Image from here)

Potvin sued the operator of the service station. She alleged that the groove was a hazardous condition of the premises and that the operator had failed to warn of them.  She conceded however that they were open and obvious to the average poerson.  The defendant sought summary dismissal of the claim, which was granted by the US District Court for Massachusetts: Potvin v Speedway LLC, 264 F. Supp 3d 337. Potvin appealed.

The Court of Appeals for the First Circuit noted that it was common ground that  Massachusetts law applied. The Court accepted that a landowner generally owes a duty to protect lawful visitors from dangerous conditions. In practical terms, however, they need only maintain the premises to a standard that would be safe to a person exercising the minimum care required in the circumstances.

Under Massachusetts law, property owners are relieved of any duty to warn of open and obvious conditions, including those that present open and obvious dangers, since it is logical to expect that a lawful visitor exercising reasonable care for her own safety would not fall victim to such “blatant hazards.”

Because the grooves were open and obvious, the defendant was not obliged to warn visitors about them.

The plaintiff also contended that the defendant had a duty to remedy the danger presented by the grooves, on the basis that there was a heightened reason to foresee that even though the hazard was obvious an open, it presented a danger likely to cause harm.  This argument was also rejected.  She suggested signs and brightly coloured paints as remedies.  The court retorted that –

warnings are not remedies. … [A]llowing a plaintiff to conflate warnings with remedies would frustrate settled doctrine. … Where, as here, the plaintiff does not propose a feasible remedy, a property owner cannot be held to answer for a putative duty to remedy.

The appeal was dismissed

Potvin v Speedway LLC (2018) US First Circuit Court of Appeals, 4 June 2018