Judge: Just because an uncovered drain hole is rather large doesn't mean a guy who trips in it only has his own damn self to blame

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.


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This only applies if the garage is properly lit and the person in question is not visually impaired.

Although I don't drive because I'm legally blind, I am a passenger sometimes in vehicles that are parked in garages. I can see, but I might not see this.


I use the same defense when

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I use the same defense when people complain about my free range venomous snakes biting them. They're giant poisonous killing serpents that I have left out sunning on the sidewalk! Why would you get close enough to allow them to bite you?! People need to take responsibility for avoiding the dangerous situations I keep creating.


Yes. That's my slogan.

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Yes. That's my slogan. "Baustin 2020! Overcoming our fear of uncaged venomous snakes but staying afraid of immigrants, women, and if there's time maybe gay people too for a better America and oh crap look out for that gaping drain hole." Please consider making a monthly pledge.

(Also, sorry to make this political. It was unnecessary. I do love you Republicans, I'm just giving you a hard time. Please do vote for me.)


But are you placing orange cones or sawhorses around your venomous snakes, and have you affixed flashing warning beacons to them? If you haven't taken these basic steps, you're slithering on thin ice.

Better than that. I have

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Better than that. I have surrounded the snakes with a clearly-marked perimeter of hi-vis caution scorpions. What more do you people want from me? This overregulation is crushing American small business!

if you qualify

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the city of Boston may provide you with a special overtime Snake Detail at no cost to you.

inquire at your nearest precinct.

We've lined up a fabulous type of gorilla

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Well, I was wrong. The lizards are a godsend.

But isn't that a bit short-sighted? What happens when we're overrun by lizards?

No problem. We simply unleash wave after wave of Chinese needle snakes. They'll wipe out the lizards.

But aren't the snakes even worse?

Yes, but we're prepared for that. We've lined up a fabulous type of gorilla that thrives on snake meat.

But then we're stuck with gorillas!

No, that's the beautiful part. When wintertime rolls around, the gorillas simply freeze to death.