Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`COMMONWEALTH OF MASSACHUSETTS
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`MIDDLESEX, SS.
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`Brendan Harrington and Portia
`Harrington, individually and on
`Behalf of her minor children )
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`Plaintiff
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`Leonard W. Delaney d/b/a )
`Lenny Delaney Compactor
`Services and Hamilton Bay
`Condominium Trust, through its
`Trustees
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`Defendant
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`SUPERIOR COURT DEPARTMENT
`CIVIL ACTION NO: 1881CV02673
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`JOINT PRETRIAL MEMORANDUM
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`NOW COME the parties to the above reference matter, and hereby submit the
`following Joint Pretrial Memorandum:
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`1.
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`AGREED FACTS:
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`1. On September 21, 2015 Plaintiff Brendan Harrington was 45 years old.
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`2. Mr. Harrington was married to Portia Harrington on November 5, 2010.
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`3. Mr. and Mrs. Harrington have two children, Eilee Harrington and Keira
`Harrington.
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`4. Mr. Harrington is right-handed.
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`5. On September 21, 2015 Mr. Harrington, was employed by First Realty
`Management Corp. (“First Realty”) as a maintenance superintendent.
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`6. Mr. Harrington began his employment with First Realty in June 2013.
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`7. Mr. Harrington’s responsibilities as a maintenance superintendent included
`working at a condominium/apartment complex located at 165, 175, 185 Quincy
`Shore Drive, Quincy, Mass (the “Complex”).
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`8. The Complex consists of three buildings, identified as Building 165, also known
`as Building 1 or Building C; Building 175, also known as Building 2 or Building B;
`and Building 185, also known as Building 3 or Building A.
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`9. On September 21, 2015, the Complex was owned by Defendant Hamilton Bay
`Condominium Trust ("Hamilton Bay”).
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`10. The Trustees of Hamilton Bay hired First Realty to provide property management
`services for the Complex.
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`11. Each of the three buildings in the Complex had a trash bay to service the building
`located in the garage.
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`12. Trash disposed by tenants would enter each trash bay via a trash chute that led
`to a trash compactor, which compressed the trash into a trash container.
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`13. First Realty maintenance superintendents changed the container twice a week,
`bringing the full container out for pickup and replacing it with an empty container.
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`14. Defendant Leonard W. Delaney d/b/a Lenny Delaney Compactor Services has
`received and responded to calls for services for the trash compactors and trash
`containers at the Complex.
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`15. Mr. Delaney first provided a service at the Complex in January 2010.
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`16. On September 21, 2015, Mr. Delaney did not have a service agreement with First
`Realty or Hamilton Bay.
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`17. On September 21, 2015, First Realty employee Louis Guyott was the fulltime
`maintenance superintendent at the Complex.
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`18. On September 21, 2015, Mr. Harrington worked with Mr. Guyott to perform a
`trash container change in the trash bay of Building 165 at the Complex.
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`19. Michael Carozza was the immediate supervisor of Mr. Harrington and Mr. Guyott
`at First Realty.
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`20. On September 21, 2015, a ratchet binder was used to connect the right side of
`the trash compactor in the Building 165 bay to the container.
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`21. On September 21, 2015, a lever binder was used to connect the left side of the
`compactor in the Building 165 bay to the container.
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`22. The compactor and binders in the Building 165 trash bay at the Complex date to
`the original construction of the building, in or around the mid-1970s.
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`2. STATEMENT OF EXPECTED EVIDENCE;
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`A. PLAINTIFFS STATEMENT OF EXPECTED EVIDENCE;
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`On September 21, 2015, Plaintiff, Brendan Harrington, who is right handed,
`was 45 years old. Mr. Harrington, was employed by First Realty Management
`Company as a maintenance superintendent. His responsibilities included
`working as a
`floater at Defendant Hamilton Bay Condominium, a
`condominium/apartment complex located at 165, 175, 185 Quincy Shore
`Drive, Quincy, Mass.
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`Mr. Harrington was married to Portia Harrington on November 5, 2010. They
`have two children, Eilee Harrington, and Keira Harrington. Portia, Eilee and
`Keira Harrington, have filed claims for loss of consortium as part of this case.
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`The property located at 165, 175 and 185 Quincy Shore Drive, Quincy Mass.
`consists of three buildings, which have variously been identified as Building
`165, also known as Building 1 or Building C, Building 175, also known as
`Building 2 or Building B, and Building 185, also known as Building 3 or
`Building A. At all relevant times including at the time of the accident, the
`Hamilton Bay Condominium complex was owned and managed by Defendant
`Hamilton Bay Condominium Trust.
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`The Trustees of Defendant Hamilton Bay Condominium Trust hired First
`Realty Management Corp., a property management corporation, to act as
`their authorized Agent, and to provide property management services for the
`Condominium/Apartment complex,
`including
`the common areas,
`trash
`compactors, and trash containers. Each of the three buildings in the complex
`had a separate trash compactor, located in a trash bay, which serviced the
`building it was located in.
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`Defendant Leonard W. Delaney d/b/a Lenny Delaney Compactor Services
`was hired by Defendant Hamilton Bay, and their Agent, First Realty
`Management Corp. to provide repair and maintenance services for the trash
`compactors and trash containers in all three buildings at the complex, on an
`as needed basis.
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`Each building had a trash disposal bay, where trash disposed of by tenants,
`entered via a trash chute into a trash compactor which compressed the trash
`into a trash container for disposal.
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`On September 21, 2015 Mr. Harrington’s right hand was injured while he was
`assisting a co-employee of First Realty Management Company, Louis Guyott,
`the property superintendent at the Hamilton Bay Condominium complex, in
`performing a trash container change in the trash bay of Building 165 at
`Hamilton Bay Condominiums. The injury occurred when Mr. Harrington was
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`in the process of using a lever style load binder to disconnect an older trash
`container from a trash compactor.
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`Michael Carozza was the immediate manager of Brendan Harrington and
`Louis Guyott at First Realty Management Company.
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`First Realty Management Company is the Agent for Defendant Hamilton Bay
`Condominium Trust and is responsible for the management of the property.
`The responsibilities of First Realty Management Company included the
`responsibility, upon initially taking over the management of the premises, to
`conduct inspections, or hire appropriate people and companies to conduct
`inspections of all systems and equipment in use at the premises, including the
`equipment used in all three trash bays, including the binders, determine if the
`equipment and systems in use were consistent with industry standards and
`custom and practice, or created safety concerns, determine what changes
`would be required to correct and improve the systems and reduce risk of
`injury to staff, inform the Board of Trustees of the result of their investigations
`and make appropriate recommendations to the board of trustees, so they can
`make informed decisions. Their responsibilities also included providing and
`properly training staff to provide services to the property, hiring and managing
`vendors providing services to the property, attending board meetings,
`preparing budgets, advising the Board of Trustees, and keeping copies of all
`relevant records and information, including all minutes of Board Meetings,
`relevant correspondence and emails and reports, including weekly and
`quarterly reports of staff, including Louis Guyott.
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`Defendant Leonard W. Delaney d/b/a Lenny Delaney Compactor Services
`was hired by Defendant Hamilton Bay Condominium Trust and during the
`relevant period of time, by their Agent, First Realty Management Company, to
`provide maintenance and repair services to the trash containers and trash
`compactors. Defendant Delaney first started to work at the premises in or
`around 2010, when he replaced the trash compactor in the trash bay in
`Building 175.
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`At the time of the accident, ratchet binders were used to connect the right
`side of the trash containers in all three trash bays to trash compactors. In
`Building 165, where Plaintiff was injured, a lever binder was used on the left
`(wall) side, which was located at the front end of the trash container (near the
`trash compactor). The space between the trash container and the wall was
`very tight, especially where the lever binder was located. In addition, there
`were pipes rising from the floor near where the lever binder was located,
`which were obstacles that impeded access to the lever binder. In order to
`access
`the
`lever binder on
`the
`left,
`(wall) side of
`the
`trash
`container/compactor in Building 165, Mr. Harrington had to squeeze into the
`tight space between the wall and the trash container, and maneuver over two
`large pipes that rose from the floor. When he lifted the lever to release the
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`trash container from the trash compactor, the trash container shifted, crushing
`his right hand.
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`Building 165 was the only building where a lever binder was used to connect
`a trash container to a trash compactor. In the trash bay in Building 175, a
`ratchet binder was used to connect the back end of the trash container (close
`to the entrance to the trash bay), to the trash compactor, via a long metal
`chain. Defendant Delaney had replaced the existing binder and installed the
`ratchet binder and chain in or around 2010, when he replaced the trash
`compactor. This allowed the person performing the container change to
`operate the ratchet binder without needing to enter into a tight space or
`navigate over obstacles.
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`In Building 185, a ratchet style load binder, located at the front end of the
`trash compactor, near the trash container, was used to connect the front end
`of the trash container to the trash compactor.
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`In all three buildings, in order to attempt to reduce the movement of the trash
`containers, two wooden two by fours were propped between the trash
`container and the wall. Plaintiffs experts are prepared to testify that the use
`of wooden two by fours is inappropriate, inconsistent with industry standards
`and custom and practice, and the fact that they are required to be used,
`means that the trash containers are not properly connected to the trash
`compactors in the trash bays.
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`Plaintiffs experts are prepared to testify that the design and equipment used
`in the trash bay in Building 165 at the time of the accident were inappropriate
`and inconsistent with industry standards and custom and practice and
`increased the risk of injury to people performing trash container changes.
`They are prepared to testify that a lever binder should not have been used to
`connect and disconnect a trash container from a trash compactor, since when
`a lever binder is used, force is released all at once, increasing the risk of
`movement of the trash container, as happened in this case, as opposed to
`when a ratchet binder is used, where the force is incrementally released,
`reducing the risk of movement and resulting injury.
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`Plaintiffs experts are also prepared to testify that requiring that a person
`performing the trash container changes to enter into a tight space, where the
`person has to squeeze into the space in order to access and operate the
`lever binder, and further navigate over pipes rising from the floor, is
`inconsistent with industry standards and custom and practice, and further
`increased the risk of injury to the person performing this task.
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`Plaintiffs experts are also prepared to testify that Defendant Hamilton Bay
`Condominium Trust, as the owner of the property, had the duty to ensure that
`the equipment used on their property was appropriate and safe to use and
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`consistent with industry standards. They also had the duty to ensure that
`people who were working with equipment on the premises, including the
`equipment in the trash bays, were appropriately trained.
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`Plaintiffs experts are further prepared to testify that, when First Realty
`Management Company was hired by Defendant Hamilton Bay Condominium
`Trust to manage and maintain the premises, including the trash bays, they
`were required, by industry standards as well as custom and practice, to hire
`appropriate people or companies, to inspect all systems at the premises,
`including the design of and equipment used in all of the trash bays, identify
`any issues that raised concerns for increased risk of injury and make
`appropriate recommendations to make changes to reduce the risks of injury.
`Although First Realty had inspections performed on other systems at the
`premises, when they first began to manage the property, they failed to hire
`any person or company to inspect the equipment in the trash bays on the
`premises. Had they hired an appropriate company to inspect the design and
`equipment used in the trash bays, a person or company, knowledgeable
`concerning the appropriate design of trash bays in apartment buildings, and
`familiar with industry standards and custom and practice would have informed
`First Realty that the design and equipment in use in the trash bay in Building
`165 was not consistent with industry standards, or custom and practice and
`would have made recommendations to make changes to reduce the risk of
`injury to people, such as Brendan Harrington, who were involved with trash
`container changes, and that it was inappropriate and inconsistent with
`industry standards and custom and practice to use two by fours propped
`against the trash containers in all three buildings, to reduce the movement of
`the trash containers.
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`Since First Realty Management Corp is the Agent of Defendant Hamilton Bay
`Condominium Trust, the negligence of First Realty, and its employees, is
`attributable to their Principal, Defendant Hamilton Bay Condominium Trust.
`Employees of First Realty, including Michael Carozza as well as Louis Guyott,
`were aware that building 165 was the only building where a lever style binder
`was used, that in order to access the lever binder on the left side in building
`165, the person performing the container change had to enter into a tight
`space and navigate over pipes, which made it difficult to maintain balance
`when operating the lever binder. They were also aware that when the lever
`binder was released, the trash container moved, and the movement was
`more than when a ratchet binder was used, and that wooden two by fours
`were used in all three trash bays to reduce the movement of the trash
`containers. They were also aware that movement increased the risk of injury.
`Although there has been testimony that Louis Guyott filed weekly reports, as
`required, in which he raised concerns about the safety of the trash disposal
`equipment, these weekly reports have not been produced, in spite of
`requests.
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`Although the board of trustees of Defendant Hamilton Bay Condominium
`Trust were aware that the trash containers in all three buildings were old and
`in poor condition, the minutes of a meeting where the need to replace the
`trash containers appears to have first been discussed, as well as potentially
`other relevant documents, have not been produced, raising concerns about
`what was discussed during meetings where the records are missing, and
`documents have not been produced or have been redacted...
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`Each trash bay had two trash containers. At any given time, one was
`connected to the trash compactor. Twice a week, the trash container
`connected to the trash compactor was disconnected, so the trash could be
`disposed of, and the second trash container was connected to the trash
`compactor. Therefore, since there were two trash containers in each building,
`and there were three buildings, there were a total of six trash containers. All
`of these trash containers were old, in poor condition, difficult to move, leaking
`and in need of replacement. Although the board of trustees was aware that
`the trash containers were in poor condition, and in need of replacement, and
`although their agent, First Realty Management Corp knew or should have
`known that the design and equipment in use in the trash bay in Building 165
`increased the risk of injury to people performing trash container changes, it
`does not appear that the board of trustees were informed, as they should
`have been by their Agent, First Realty, that changes in the equipment and
`design in the trash bay in Building 165 were required to reduce the risk of
`injury to staff working with this equipment. However, the person who was
`president of the board of trustees has testified that, had he been made aware
`that there was a need to replace equipment or change the design of the
`equipment in Building 165 in order to reduce the risk of injury to people
`working with this equipment, he would have voted to spend what was
`required to authorize changes that would improve safety.
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`First Realty, on behalf of Defendant Hamilton Bay Condominium Trust,
`requested that Defendant Leonard W. Delaney provide proposals to replace
`all six (6) of the trash containers, two (2) for each building at the premises.
`Eventually, First Realty placed an order with Defendant Delaney to purchase
`three (3) new trash containers, one for each building, to replace three (3)
`existing older trash containers, with the plan that the remaining three older
`trash containers would be replaced either later that year, if the budget
`permitted, or the following year.
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`Prior to placing the order, Defendant Delaney was aware that the space
`between the trash container and the wall in the trash bay in building 165 was
`tight. He has testified that, although he could “shimmy” into this space, since
`he was not large, a larger person would have more trouble entering this
`space and accessing and operating the lever binder. He was also aware that
`there were large pipes rising from the floor near where the lever binder was
`located that would impact how a person operating the lever binder would
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`have to be positioned. He also has acknowledged that he was aware that
`options existed to make changes that would make the equipment in the trash
`bay in Building 165 easier and safer to use, such as removing the lever binder
`and installing a system such as he had installed in 2010 in the trash bay in
`Building 175, where he had installed a ratchet style binder to the back of the
`trash container, near the entrance to the trash bay, connected to the trash
`compactor via a long chain, which would have eliminated the need for a
`person performing container changes to enter the tight space between the
`wall and the container. He also testified that he was aware that he could
`have recommended use of a single sided binder system that was specially
`designed for use in apartment buildings, such as at the Hamilton Bay
`complex, where there was not a lot of space. He was also aware that he
`could have recommended rotating the trash compactor, in order to create
`more space for the person performing container changes to access and
`operate the binder.
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`However, although he was aware that the existing design was tight, and that it
`was therefore difficult to access and operate the lever binder, when he
`modified the system that was present, he did not inform anyone that the
`current design and equipment created an increased risk of injury to people
`performing container changes and that options existed that could reduce the
`risk of injury, or make any recommendation to replace the existing lever
`binder in Building 165, or suggest making any changes other than to order the
`new trash container with a slightly different design which would provide a few
`more inches between the container and the wall. In Building 165 than the
`prior system had provided. When Defendant Delaney ordered the new trash
`containers, he made the conscious decision to continue to use the existing
`lever binder on the left (wall) side of the trash bay in Building 165.
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`Plaintiffs experts are prepared to testify that, consistent with industry
`standards and custom and practice, Defendant Delaney, as a person who
`was experienced and knowledgeable concerning trash compactors and trash
`containers, should have been aware that the design, system and equipment
`in use in the trash bay in Building 165 prior to Mr. Harrington’s accident, was
`not consistent with industry standards or custom and practice, and that it
`created an increased risk of injury to people working with this equipment and
`performing trash container changes.
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`Plaintiffs experts are prepared to testify that, consistent with industry
`standards and custom and practice, Defendant Delaney should have been
`aware that since he had superior knowledge concerning the equipment and
`design of trash disposal systems, and safety issues caused by equipment and
`design, that Defendant Hamilton Bay and their agent, First Realty would be
`relying on him to make appropriate recommendations to them, of any
`changes in design or equipment that, consistent with industry standards,
`would reduce the risk of injury to people working with the equipment.
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`Plaintiffs experts are prepared to testify that, consistent with industry
`standards and custom and practice, Defendant Delaney had the duty and
`responsibility to inform appropriate people at Defendant Hamilton Bay, or their
`agent, First Realty, that the current equipment and design, including the use
`of a lever binder that was difficult to access and operate, increased the risk of
`injury
`to people working with
`it, and
`to either make appropriate
`recommendations for changes that could be made to improve the safety of
`the system, or recommend that they contact someone who could suggest
`how to make changes that would improve the safety of the system.
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`Therefore, Plaintiffs anticipate that their experts will testify that the equipment,
`design and system in place on September 21, 2015, when Plaintiff was
`injured, created an increased risk of injury, that Defendants Hamilton Bay and
`Delaney’s actions were a departure from the standard of care and that
`Plaintiff’s injuries were the result of the failure of both Defendant Hamilton
`Bay, as well as Defendant Delaney to act, consistent with industry standards,
`custom and practice.
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`Following the accident, Mr. Harrington received medical treatment from a
`several of medical providers. A number of surgical procedures were
`performed on his right hand as a result of the injuries he sustained in this
`accident, to try to repair and/or improve the function of his right hand, and
`reduce his pain and discomfort. All of these medical procedures were
`unsuccessful, his right hand remained non-functional and he continued to
`suffer from pain, discomfort. On August 24, 2020, as a result of contracture of
`his right ring finger, which caused him significant pain and discomfort, his
`right ring finger was amputated. After the amputation of his right ring finger,
`he developed crossover of the small finger of his right hand into his palm,
`which severely limited his hand function, resulting in the amputation of of
`small finger of his right hand by Neal Chen, MD, on February 7, 2022. His
`right hand remains non-functional and continues to cause him significant pain.
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`As a result of the injuries he sustained in the accident, Mr. Harrington was no
`longer able to perform the normal responsibilities he had performed prior to
`being injured, and as a result was terminated from his employment with First
`Realty Management Company. He remains disabled and in addition to
`interfering with his ability to work, his injuries, and the resulting psychological
`injuries he has sustained, interfere with his relationship with his wife and
`daughters, as well as many normal activities of daily living.
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`B. DEFENDANT LEONARD DELANEY’S STATEMENT OF EXPECTED
`EVIDENCE
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`Mr. Delaney denies liability and expects the evidence to show that he neither had nor
`breached a duty of care to Mr. Harrington. Mr. Delaney expects the evidence to show that
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`Hamilton Bay did not contract with him to design, install, inspect, monitor, or perform routine
`maintenance on the equipment allegedly involved in Mr. Harrington’s incident. Further, Mr.
`Delaney expects the evidence to show that he did not provide any services related to the load
`binder allegedly involved in Mr. Harrington’s incident, and that Hamilton Bay did not rely on
`Mr. Delaney to warn them about the existing trash disposal equipment at the Complex or to
`promote alternative designs.
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`Mr. Delaney expects the evidence to show that any potential risks associated with the
`trash disposal equipment at the Complex, such as pinch points, were open and obvious to a
`maintenance superintendent, like Mr. Harrington, of ordinary prudence. Therefore, there would
`be no duty to warn him or his supervisors of such risks. Moreover, Mr. Delaney expects the
`evidence to show that Mr. Harrington in fact knew of these obvious risks before the incident.
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`Mr. Delaney additionally expects the evidence to show that the trash disposal equipment
`allegedly involved in Mr. Harrington’s incident was not defective and was reasonably safe if
`operated correctly. The evidence will show that the at-issue system was utilized routinely for
`decades before the alleged incident and has remained in use for over seven years since the
`alleged incident without other injury. Mr. Delaney expects the evidence to show that the
`existence of alternative designs in the market would not render the at-issue system unreasonably
`dangerous, as technology in all industries can be expected to change and progress with time. Mr.
`Delaney, however, further expects the evidence to show that he did in fact present a proposal for
`an alternative design before the alleged incident when asked to do so.
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`Mr. Delaney expects the evidence to show that any act or omission he is alleged to have
`made did not cause Mr. Harrington’s injuries. Specifically, the evidence is expected to show that
`Mr. Delaney did not have control over the equipment, could not makes changes of his own
`authority, could not compel First Realty to present issues to Hamilton Bay, could not compel
`Hamilton Bay to accept recommendations, and could not control how Mr. Harrington conducted
`himself on the day of the incident. Further, the evidence is expected to show that Hamilton Bay
`could have received warning of the allegedly hazardous condition from other sources, including
`Mr. Harrington himself. Therefore, Mr. Delaney had no reason to believe Hamilton Bay or Mr.
`Harrington would need such a warning.
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`Mr. Delaney additionally expects the evidence to show that even if Mr. Harrington could
`prove Mr. Delaney had a duty of care, breached that duty, and caused his incident—which he
`cannot, Mr. Harrington’s own comparative negligence precludes his recovery. Mr. Delaney
`expects the evidence to show that Mr. Harrington performed the container change improperly at
`the time of the alleged incident. Specifically, Mr. Delaney expects the evidence to show that Mr.
`Harrington disconnected the container in an unsafe manner, causing his injuries.
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`Mr. Delaney disputes the extent of Mr. Harrington’s alleged injuries and his alleged
`disability. Mr. Delaney expects the evidence to show that Mr. Harrington had a pre-existing wrist
`condition and that the alleged wrist injury is an exacerbation of that pre-existing wrist condition.
`Mr. Delaney further expects the evidence to show that Mr. Harrington’s alleged injury did not
`render him unable to return to gainful employment or to contribute to his household.
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`{B1683979.1}
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`Date Filed 3/15/2023 11:17 AM
`Superior Court - Middlesex
`Docket Number 1881CV02673
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`C. DEFENDANT HAMILTON BAYS STATEMENT OF EXPECTED EVIDENCE
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`In Massachusetts, a landowner has a duty to maintain its property in a reasonably safe
`condition in view of all the circumstances, including the likelihood of injury to others, the
`seriousness of the injury, and the burden of avoiding the risk. See Barry v. Beverly Enterprises-
`Massachusetts, Inc., 418 Mass. 590, 592-93 (1994). A landowner is not, however, “‘obliged to
`supply a place of maximum safety, but only one which would be safe to a person who exercises
`such minimum care as the circumstances reasonably indicate.’” Id. at 593 (quoting Toubiana v.
`Priestly, 402 Mass. 84, 88 (1988)).
`
` A
`
` landowner is under no duty to remedy a defective condition unless it has actual or
`constructive knowledge of such condition. See id. (“a defendant who did not have a reasonable
`opportunity to discover and remedy a hazardous condition--that is, a defendant who had no
`actual or constructive knowledge of the allegedly hazardous condition so that it could not
`reasonably remove, or warn the plaintiff of, the danger--cannot be found to have violated its duty
`of care.”). As Hamilton Bay had no actual or constructive knowledge of the alleged defective
`condition prior to plaintiff’s accident, it cannot be found liable. See Fales v. Hooten, 2008
`MBAR 70 (Mass. Super. 2008) (granting defendant’s Motion for Summary Judgment:
`“[Plaintiff] does not, however, point this court to any evidence showing [Defendant] knew, or
`should have known, the placement of the doormat, in conjunction with the way the doors opened,
`created an unreasonably dangerous condition on the premises. The evidence is the mat was
`beneath the rear entrance doorway, one step down. There is no evidence [Defendant] knew
`anything about the doormat or who had placed it there. Indeed, [Plaintiff] testified in his
`deposition he had never met [Defendant] and he never told his wife [a resident at the apartment
`building] to complain to [Defendant] regarding a condition of the property. * * *. As there is no
`evidence in the record [Defendant] was aware of an alleged defect on the premises, she cannot be
`liable.”)1.
`
`Further, a property owner does not have a duty to warn of dangers which are open and
`obvious. See Rainka v. Shing, 2000 Mass.App.Div. 186, 189-92 (2000) (“‘If a risk is of such a
`nature that it would be obvious to persons of average intelligence, there is, ordinarily, no duty on
`the part of the property owner to warn of the risk.’”) (quoting Polak v. Whitney, 21
`Mass.App.Ct. 349, 353 (1985)).
`
`
`Finally, plaintiff’s contributory negligence is significant. During his deposition, plaintiff
`testified that he performed dumpster changes in the same manner he did it at the time of the
`
`1 (In support of its decision, the Fales court cited Richardson v. Star Market Co., 356 Mass. 731
`(1969) (verdict for defendant not error where defendant did not know, or should have known,
`items existed on floor of premises which caused plaintiff to fall and sustain injury); Allen v.
`Albert Zallen Co., 340 Mass. 785 (1960) (not error to enter order of directed verdict in favor of
`defendant where plaintiff tripped and fell on a rolled up mat in defendant’s store, but where
`defendant did not have reason to know of dangerous condition of mat); Santos v. Bettencourt, 40
`Mass.App.Ct. 90, 91 (1996) (upholding order allowing defendant’s Motion for Summary
`Judgment where plaintiff did not present any evidence the defendant knew or should have known
`scaffolding set up at his house wa