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Gasoline Trap Trip
by Sara Palmer

At Massachusetts self serve gas stations, concentric grooves in the pavement to contain gasoline spills, known as positive limiting barriers (PLB) are mandated by law.

On January 20th, 2012, Eileen Potvin was with her boyfriend when she drove her car into the gas station that was then owned by Hess Corporation. "While her boyfriend went inside to pay for gasoline, the plaintiff exited her vehicle and went in search of a squeegee to clean her windshield." As she was unable to find one, Potvin began to walk backwards toward her car and got the heel of her shoe caught in a PLB and fell, injuring herself in the process.

As the fall caused bodily injury, "she filed suit against Hess in a Massachusetts State Court. She claimed the Hess was negligent because the presence of the PLBs constituted a hazardous condition and Hess failed to warn of that hazard." Hess cited diversity of citizenship and the existence of a controversy in the requisite amount and "removed the action to the federal district court."

"While the suit was pending, Speedway LLC acquired certain of Hess's assets, including the station." As such, "Speedway assumed certain of Hess's liabilities, including the responsibility for the plaintiff's lawsuit. To facilitate this assumption of liability, Hess moved to substitute Speedway as the party-defendant." The motion was granted as it did not affect the district court's jurisdiction.

"Speedway sought summary judgment" which was granted despite the plaintiff opposing the motion. "The court concluded that the PLBs, if dangerous at all, presented an open and obvious danger so that the Station had no duty to warn customers about that danger."

On appeal, Potvin suggested that Speedway "ought to have anticipated that customers would be distracted by their surroundings. This potential for distraction, the plaintiff suggests, gave rise to a special duty to take extra precautions to warn customers about the PLBs." She only raised this suggestion at the time of the appeal and it was not presented before the court properly. The court dismissed this suggestion, citing that "If any principle is settled in this circuit, it is that, absent the most extraordinary circumstances, legal theories not raised squarely in the lower court cannot be broached for the first time on appeal."

Despite the PLB's being "open and obvious", Potvin argued that Speedway "had a duty to remedy the danger [the PLBs] presented." As Potvin could "not propose a feasible remedy," the court decided that "property owner [could not] be held to answer for a putative duty to remedy."

As for the plaintiff challenging the district court's ruling of allowing Speedway to substitue for Hess, the Supreme Court felt that there was no "abuse of discretion." As such, the Supreme Court affirmed the district court's ruling.

(Potvin v. Speedway LLC, No. 17-1993 (1st Cir. 2018))

Decision: June 2018
Published: June 2018



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