Alicea v. Cincinnati Incorporated

• Court: Court of Appeals for the First Circuit
• Decided: February 6, 2026
• Docket: 24-1966
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1966

CHRISTOPHER ALICEA, as Personal Representative of the Estate of Luis M. Prieto,

Plaintiff, Appellant,

v.

CINCINNATI INCORPORATED,

Defendant, Appellee,

NEW AUTOMATION CORPORATION, d/b/a PythonX, d/b/a Burlington Automation, d/b/a The Lincoln Electric Company, d/b/a Lincoln Electric Holdings, Inc.,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Aframe, Lipez, and Howard, Circuit Judges.

Robert F. Foster, with whom Peter J. Ainsworth and Meehan, Boyle, Black & Bogdanow, P.C. were on brief, for appellant. Christopher A. Duggan, with whom Andrew D. Black and Smith, Duggan, Cornell & Gollub, LLP were on brief, for appellee. February 6, 2026 AFRAME, Circuit Judge. Luis Prieto, a laser-cutting

system operator, died when a descending steel beam trapped him

between two components of a laser-cutting system. After his death,

Prieto's estate sued Cincinnati Incorporated, which designed,

sold, installed, and maintained the system.1 The estate brought

essentially three claims against Cincinnati. First, it claimed

that Cincinnati negligently designed the system and breached its

warranty of merchantability on design defect grounds. Second, it

argued that Cincinnati negligently installed the system and

breached its warranty of merchantability on manufacturing defect

grounds. Third, the estate alleged that Cincinnati negligently

failed to maintain the system's safety and warn of its dangerous

condition. Following discovery, the district court granted

Cincinnati's motion for summary judgment on all claims. The estate

now appeals. We vacate the district court's order on the

design-related claims because there is a material factual dispute

on whether there was a reasonable alternative design that could

have mitigated the system's dangers. We otherwise affirm.

1 The case was originally filed in state court and was removed to federal court on diversity grounds. The estate also brought claims against a separate entity, New Automation Corporation, that had manufactured and helped install a component of the system. Prior to Cincinnati's motion for summary judgment, the parties stipulated to New Automation Corporation's dismissal from the action. - 3 - I.

A.

In October 2017, Industrial Metal Products Company

("InMetal"), a metal fabricator located in Sharon, Massachusetts,

hired Prieto to operate the laser-cutting system that it had

purchased from Cincinnati in late 2000 or early 2001. The system

has three components: (1) a material handler, or "loader," that

has two parts -- a storage rack and an elevator, (2) a load frame,

and (3) a main frame.2 The system works as follows. Metal sheets

of various types and sizes are stored on the material handler's

storage rack waiting to be cut. When a metal sheet is requested,

the handler elevator moves the selected sheet from the storage

rack down to the load frame. The metal sheet then moves from the

load frame to the main frame, where it is cut by a laser.

As is relevant here, there is a narrow gap between the

material handler, where metal sheets are stored, and the load

frame, where metal sheets are placed in advance of cutting. The

gap is no more than twelve inches wide. When the material

handler's elevator descends to transfer a metal sheet to the load

2 InMetal added the material handler to the system after the installation of the laser cutter. The material handler was designed and manufactured by New Automation Corporation per an agreement with Cincinnati. For the purpose of these proceedings, there is no dispute that Cincinnati was responsible for the design, installation, and maintenance of the system. - 4 - frame, a steel support beam that rests under the elevator slides

into this gap, creating a pinch point.

On July 12, 2018, Prieto was operating the system with

a coworker. When his coworker activated the system, he did not

see that Prieto had entered the gap. As the elevator dropped, the

steel support beam resting under the elevator descended into the

gap, pinning Prieto to the load frame. The steel beam crushed

Prieto's mid-section. Emergency responders extricated Prieto

after about ninety minutes, but he died shortly thereafter. Below

is a diagram of the system, including a demarcation for where

Prieto stood when the accident occurred.

As the diagram shows, Prieto was caught a few feet from

the laser operator control station. No one saw how Prieto reached

the pinch point on the day of the accident. There were at least

three routes by which Prieto could have entered the gap. First, - 5 - he could have used a small stepladder kept at the laser operator

control station to maneuver around a barrier fence and then over

the load frame, sliding into the gap. Second, he could have

proceeded to the front of the load frame and then scrambled over

it, again sliding into the gap. Or third, he could have walked

around the system to the wall-side entryway, which, on the day of

the accident was not guarded by a barrier. He could have then

shuffled sideways, with his feet facing the load frame, eight feet

down the narrow gap to the pinch point.

On at least one occasion prior to the incident, Prieto

was reprimanded for entering the gap. InMetal's owner, Craig

Perry, testified that Prieto had no work-related reason for ever

entering the gap. Conversely, Prieto's predecessor at InMetal,

Daniel Pond, testified that operating the laser cutter did require

periodic entry into the gap to remove metal scraps that would fall

to the floor or get caught between the machines. Pond also

testified that, during his InMetal employment, he entered the gap

through the wall-side entrance because he thought it was the

easiest approach. Pond never met or communicated with Prieto.

The estate produced an expert witness to opine on the

system's design. The expert included the following opinions in

his report: (1) there was no safety barrier on the system's

wall-side entrance when Prieto's accident occurred; (2) there

should have been an "E-stop" mechanism accessible from the pinch - 6 - point to halt the machine; (3) there should have been a safety

mat -- a pressure-sensitive device that would stop the machine

when pressed -- on the floor under the pinch point; (4) Cincinnati

was negligent in not providing a wall-side barrier and other safety

measures, i.e., the E-stop and a safety mat; (5) a wall-side

barrier and additional safety measures were feasible and would

have impaired neither the usefulness nor the operation of the

system; and (6) Prieto would not have died had Cincinnati provided

a wall-side barrier and these additional safety measures.

During the expert's deposition, the expert amended his

report based on information gleaned over the course of the accident

investigation and litigation. Whereas his report stated that

"there was never a confirmation" that the wall-side barrier had

been installed, during his deposition, the expert clarified that

Cincinnati had initially installed a safety barrier along the

wall-side entryway, and that the barrier later had been removed.

When asked whether the barrier constituted a "reasonable way of

guarding that area" and whether "[t]he system with that guard in

place [was] reasonably designed," the expert answered

affirmatively. He also maintained that "there should have been a

safety mat in between the edge of the loader and the load bed" and

that "an E-stop should have been accessible from the area where

Mr. Prieto was crushed."

- 7 - Finally, the record demonstrates that Cincinnati

continued to maintain the system after its installation at InMetal.

Following the system's installation, a Cincinnati employee, Jose

Nunez, visited InMetal periodically and completed maintenance

reports. During these visits, Nunez did not notice that the

wall-side entry was unguarded and neither took steps to install a

barrier nor report its absence to InMetal employees.

B.

Following discovery, Cincinnati moved for summary

judgment on all claims. Over the estate's opposition, the district

court granted the motion in a short rescript.

The district court appears to have addressed first the

design and installation claims together, which it labeled "the

breach of warranty [of merchantability] claim." The court found

that "Cincinnati's product, as designed and installed, included a

barrier fence protecting the gap between the laser and machine

handler on the wall-side of the machine." The court held that

"with the barrier fence installed, and the gap between the laser

and machine handler thus adequately protected . . . there was no

breach of warranty at the time the machinery was delivered to and

installed at the InMetal facility." To support its conclusion

that the barrier had at some point been installed, the court relied

on record evidence including "marks of wear and tear" where the

- 8 - missing wall-side barrier would have been fastened. The court

also cited the estate's expert's deposition testimony that (1) the

system came installed with a barrier to guard the wall-side entry

to the pinch point and (2) the barrier was a reasonable way of

guarding the area.

The district court next addressed "the negligence and

related claims." We understand the court's reference to

"negligence and related claims" to pertain to Cincinnati's alleged

failure to maintain and warn of the missing wall-side barrier in

the years following the system's assembly.3 The court concluded

that as for these issues, the estate had failed to create a triable

question on causation, a necessary element for a negligence claim.

The court observed that the undisputed evidence established at

least three means by which Prieto could have reached the pinch

3 Our understanding is informed by the fact that under Massachusetts law, if there were no breach of the warranty of merchantability then there would be no basis for finding a triable issue on negligent design or manufacturing. See Haglund v. Philip Morris, Inc., 847 N.E.2d 315, 322 n.9 (Mass. 2006) ("A defendant cannot be found to have been negligent without having breached the warranty of merchantability." (quoting Colter v. Barber–Greene Co., 525 N.E.2d 1305, 1313 (Mass. 1988))); see also Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 379 n.3 (1st Cir. 2000) (finding pursuant to Massachusetts law that its "conclusion that there is no breach of warranty of merchantability justifie[d] summary judgment on [the plaintiff's] negligence claims"). We apply Massachusetts law because our jurisdiction is premised on diversity and the parties reasonably agree that Massachusetts law governs this dispute. See, e.g., Shay v. Walters, 702 F.3d 76, 80 (1st Cir. 2012). - 9 - point, and the estate had failed to identify evidence from which

a factfinder could conclude that Prieto was more likely to have

entered through the exposed wall-side opening than through an

alternative path. Absent such evidence, the court held that

Cincinnati's alleged negligent maintenance and failure to warn

claims could not be considered a proximate cause of Prieto's

injuries.

Finally, the district court addressed "[t]wo other minor

points." First, it offered a second reason for rejecting the

negligent maintenance claim. It concluded that Cincinnati's

service employee Jose Nunez's "responsibility did not include

assessing the safety of the material handling system," and thus

"[t]he obligation to assure the safety of the machinery rested

with InMetal and its employees," not Cincinnati. Second, it held

that the testimony from Prieto's predecessor, Daniel Pond -- that

"he, like Prieto, also entered the hazardous area between the laser

and material handler" and that his "safety concerns were expressed

to InMetal employees, not Cincinnati employees" -- was "not

germane to the question of Cincinnati's responsibility for

Prieto's death."

The estate timely appealed.

- 10 - II.

We review de novo the district court's grant of summary

judgment and may affirm on any ground supported by the record.

See Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir. 2008). In

conducting our review, we construe the facts and all reasonable

inferences from those facts in favor of the non-movant -- here,

the estate. See Pleasantdale Condos. LLC v. Wakefield, 37 F.4th

728, 733 (1st Cir. 2022).

A district court may grant summary judgment on a claim

or part of a claim if the movant "shows that there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute

is genuine "if the evidence would enable a reasonable factfinder

to decide the issue in favor of either party." Irobe v. U.S. Dep't

of Agric., 890 F.3d 371, 377 (1st Cir. 2018). "A fact is 'material'

if it 'has the capacity to change the outcome of the [factfinder's]

determination.'" Id. (alteration in original) (quoting Perez v.

Lorraine Enters., Inc., 769 F.3d 23, 29 (1st Cir. 2014)).

Where a movant asserts that there is an absence of

evidence to support claims on which the non-movant bears the burden

of proof, the non-movant "may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that a

trial worthy issue persists." Calvi v. Knox County, 470 F.3d 422, - 11 - 426 (1st Cir. 2006); see also Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991). Fulfilling this obligation requires the

estate to do more than the "frenzied brandishing of a cardboard

sword." Calvi, 470 F.3d at 426. Rather, to reach trial, the

estate must identify evidence that is "significantly probative" on

the disputed issue. Irobe, 890 F.3d at 377 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "[A]

conglomeration of 'conclusory allegations, improbable inferences,

and unsupported speculation'" will not suffice. Calvi, 470 F.3d

at 426 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.

2005)).

The estate challenges the district court's rejection of

its claims that Cincinnati (1) negligently designed the system and

breached its warranty of merchantability on design defect grounds,

(2) negligently installed the system's wall-side barrier and

breached its warranty of merchantability on manufacturing defect

grounds, and (3) negligently failed to maintain the system's

wall-side barrier and warn of its dangerous condition following

the installation.

As for the negligent design and corresponding warranty

claims, the estate argues that the court wrongly concluded that

the system was appropriately designed as a matter of law on the

ground that the wall-side barrier, by itself, was a "reasonable" - 12 - way of guarding the gap. The estate contends that it introduced

sufficient evidence to raise a triable issue on whether the

system's risks could have been reduced or eliminated by the

adoption of one or more reasonable alternatives, such as

introducing an E-stop and a safety mat.

The remaining claims -- the negligent installation claim

and related breach of warranty claim as well as the negligent

maintenance and failure to warn claims -- all involve the system's

wall-side barrier. As is relevant here, the estate contends that

the court wrongly concluded that there was no evidence that Prieto

entered the gap from the wall-side entrance. To the contrary, the

estate argues there is sufficient evidence of Prieto's wall-side

entry, and such evidence creates a trial-worthy issue on whether

Cincinnati's negligence in installing and maintaining the missing

wall-side barrier caused Prieto's injury. We address these

arguments, starting with the design-related claims.

1.

the negligent design claim and related breach of the warranty of

merchantability claim, arguing that a factfinder could conclude

that the system's design was defective. The design, the estate

posits, failed to include additional safety mechanisms,

specifically an E-stop and a safety mat, that would have halted

the system or made it inoperable when someone stood in the gap. - 13 - When evaluating claims of negligent design, the

factfinder considers "whether the product [has been] designed with

reasonable care to eliminate avoidable dangers." Cigna Ins. Co.

v. Oy Saunatec, Ltd., 241 F.3d 1, 15 (1st Cir. 2001) (quoting Uloth

v. City Tank Corp., 384 N.E.2d 1188, 1191 (Mass. 1978)). Liability

is "imposed where the defendant 'has failed to use reasonable care

to eliminate foreseeable dangers which subject a user to an

unreasonable risk of injury.'" Haglund, 847 N.E.2d at 322 n.9

(quoting Colter, 525 N.E.2d at 1313).

Likewise, for warranty of merchantability claims, the

factfinder considers whether a product, at the point of sale or

distribution, is fit for its ordinary purpose -- that is, its

intended and foreseeable use. See Evans v. Lorillard Tobacco Co.,

990 N.E.2d 997, 1010 (Mass. 2013); Haglund, 847 N.E.2d at 322.

Liability attaches where "a product that is 'defective and

unreasonably dangerous' . . . for the '[o]rdinary purposes' for

which it is 'fit[,]' causes injury." Evans, 990 N.E.2d at 1010

(first alteration in original) (quoting Haglund, 847 N.E.2d at

322).4

4 A breach of the warranty of merchantability can arise "because of a manufacturing defect, a design defect, or a warning defect." Evans, 990 N.E.2d at 1010 (citing Restatement (Third) of Torts: Products Liability § 2 (Am. Law Inst. 1998)). - 14 - Under Massachusetts law, "actions for negligence and for

breach of warranty impose distinct duties and standards of care."

Haglund, 847 N.E.2d at 322 n.9 (quoting Colter, 525 N.E.2d at

1313). While a breach of warranty claim focuses on "product

characteristics," a negligence action centers "on the defendant's

conduct." Cigna, 241 F.3d at 15 (quoting Back v. Wickes Corp.,

378 N.E.2d 964, 970 (Mass. 1978)). Moreover, the causes of action

differ regarding the defenses available to a defendant.5 That

said, "'the nature of the decision [in both actions] is essentially

the same.' . . . [A] finding that a defendant has negligently

designed a product is tantamount to a finding that the product is

unfit for ordinary use." Cigna, 241 F.3d at 15-16 (first

alteration in original) (quoting Back, 378 N.E.2d at 970). Thus,

"[i]n most substantive respects . . . the negligence and warranty

inquiries are congruent." Gillespie v. Sears, Roebuck & Co., 386

F.3d 21, 26 (1st Cir. 2004).

As is relevant here, under either a theory of negligent

design or a theory of breach of warranty arising from a design

5 For a negligence claim, a defendant may establish comparative negligence to limit or prevent damages based on any foreseeable misuse of a product by the plaintiff -- whether the defect is known or not; by contrast, for a breach of warranty claim, a plaintiff's foreseeable misuse of a product in the face of a known defect can serve as an affirmative defense to preclude liability. See Cigna, 241 F.3d at 16-17 (applying Massachusetts law). - 15 - defect, a "plaintiff must show 'an available design modification

[that] would reduce the risk without undue cost or interference

with the performance of the [product],' and the jury must consider

whether a safer alternative design was available in deciding

whether the defendant was negligent for failing to adopt that

design." Evans, 990 N.E.2d at 1024 (second alteration in original)

(quoting Colter, 525 N.E.2d at 1310-11).

Here, the estate alleged that the system design was

inadequate because of its failure to have an E-stop device and a

safety mat in the area where Prieto was injured. In support of

this contention, the estate relied on its expert's opinion, which

Massachusetts courts have routinely found necessary in design

defect cases. See Enrich v. Windmere Corp., 616 N.E.2d 1081, 1084

(Mass. 1993) ("The presence of such a defect cannot be inferred in

the absence of expert testimony."). The expert's report concluded

that "Cincinnati was negligent in failing to provide adequate

guarding and safety measures as discussed herein," which the expert

had identified as an E-stop and a safety mat. It added that the

adoption of such "measures [was] feasible and would not have

impaired the utility or usefulness of the machines." The report

also stated that the absence of these safety measures caused

Prieto's death.

During his deposition, the expert responded

affirmatively when asked if (1) "there should have been a safety - 16 - mat in between the edge of the loader and the load bed" and (2) "an

E-stop should have been accessible from the area where Mr. Prieto

was crushed." The expert further testified that if Cincinnati

"had a safety mat there, [Prieto would] be alive now." Where a

"plaintiff can show an available design modification which would

reduce the risk without undue cost or interference with the

performance of the machine," a jury question exists. Uloth, 384

N.E.2d at 1193; see also Evans, 990 N.E.2d at 1014. Here, the

estate has made such a showing, thereby establishing a triable

issue on the adequacy of the system design.

As we note above, the district court rejected the

estate's design claim on the ground that the estate's expert had

testified that the system with a wall-side barrier installed would

be reasonably safe without additional safety mechanisms. The

district court cited an exchange during the expert's deposition

where the expert acknowledged that a wall-side barrier was

initially installed and later removed from the system. The expert

testified as follows:

Q: Okay.· There's no doubt that this barrier had been there, right?

A: There's no doubt.

. . .

Q: And would you agree with me then . . . that would be a reasonable way of guarding that space?

- 17 - . . .

A: That would be reasonable.

Q: So we're in agreement that when the loader was installed, that fence -- barrier fence guard was in place at some point? . . .

A: Yes.

Q: And we are in agreement that that's a reasonable way of guarding that area, correct?

A: It's reasonable.

Q: The system with that guard in place is reasonably designed, true?

A: On its face reasonable.

The district court (and Cincinnati on appeal) construed

the last answer as an admission by the expert that because the

wall-side entry was guarded by a barrier at some point, the overall

system was safely designed. We disagree with the court's

interpretation of the testimony. The court's interpretation

divorces the final exchange from what came before. A factfinder

reasonably could interpret from the context that the expert's "[o]n

its face reasonable" response meant that while the expert believed

that the barrier was a reasonable way to prevent access to the gap

from the wall-side entryway, he was not opining that the entire

system was safely designed because of the wall-side barrier. - 18 - In arguing for an affirmance of summary judgment on the

design claims, Cincinnati offers several alternative arguments.

None are persuasive.

First, Cincinnati contends that the expert's opinion

that the system required additional safety mechanisms presumed

that the system had been designed without a wall-side barrier.

Not so. The expert's report explained that his "first thought"

was that an additional safety mat or mats were necessary because

the wall-side entry was unguarded. However, he ultimately

concluded that even assuming the wall-side entry was guarded, the

fact that there remained multiple, unguarded ways to reach the

pinch point meant that, "safety mats [were] still necessary,

especially since there [were] work-related reasons for operators

to enter this dangerous area."

Cincinnati next asserts that the expert's opinion that

additional safety mechanisms would have prevented Prieto's

injuries was conclusory. But there is no dispute that Prieto died

from injuries sustained while he was in the gap and the expert

opined that a properly functioning safety mat or an E-stop would

have prevented the system from operating while Prieto stood in the

gap. What follows then is not a conclusory assertion but rather

a reasoned, commonsense inference that Prieto's injuries could

have been mitigated or prevented if these additional safety

mechanisms were in place. See Hayes v. Douglas Dynamics, Inc., 8 - 19 - F.3d 88, 92 (1st Cir. 1993) (noting that an expert affidavit "must

at least include the factual basis and the process of reasoning

which makes the conclusion viable").

Cincinnati similarly contends that the expert's opinion

is speculative because it does not address "the fact that Prieto

intentionally put himself in this very dangerous space and made no

evident effort to get out." Cincinnati asserts that to the extent

Prieto was "playing games," additional safety mechanisms would

have been of little assistance. However, Prieto's reasons for

being in the pinch point, and specifically whether Prieto was

"playing games," is in dispute. On the one hand, Craig Perry,

InMetal's owner, testified that there was no work-related reason

for a laser operator to enter the gap. Furthermore, the record

indicates that on at least one other occasion prior to the

incident, Prieto was reprimanded for entering the pinch point. On

the other hand, there is evidence that there were work-related

reasons to be in that location. In particular, Prieto's

predecessor, Daniel Pond, testified that metal scraps would

periodically fall into the gap and would need to be cleared by the

- 20 - operator.6 The conflicting evidence creates a factual dispute on

why Prieto was in the pinch point on the day of the accident.7

Finally, Cincinnati contends that introducing the E-stop

and a safety mat would in fact make the system more dangerous. It

argues that such mechanisms would encourage operators to enter the

gap based on the false assumption that it would now be safe to do

so. This contention, however, goes to what constitutes a

reasonable system design and thus is a question for the jury. See

Osorio v. One World Techs. Inc., 659 F.3d 81, 84–85 (1st Cir. 2011)

("It is the province of the jury to determine whether the relevant

factors, properly balanced, suggest that a product's [proposed

alternative] design is unreasonable." (citing Back, 378 N.E.2d at

970)); see also Laramie v. Philip Morris USA Inc., 173 N.E.3d 731,

6 Cincinnati separately argues that Pond's testimony is irrelevant to the case. We disagree. While not all of Pond's testimony is relevant, see infra at 26-27, we find that his testimony regarding how the laser-cutting system operated and the steps required by the operator of the system to keep the system functioning are factual observations that establish the scope of foreseeable uses of the system. Such testimony has "significant[] probative" value. Irobe, 890 F.3d at 377 (quoting Anderson, 477 U.S. at 249). 7 In a footnote, Cincinnati makes a brief and undeveloped reference to Prieto's conduct as an unforeseeable "intentional and dangerous misuse" of the system for which Cincinnati cannot be liable. To the extent Cincinnati asserts this contention as an independent basis to affirm, the argument is undeveloped and thus waived. See Tax-Free Fixed Income Fund for P.R. Residents, Inc. v. Ocean Capital LLC, 137 F.4th 6, 24 (1st Cir. 2025) ("[A]rguments raised only in a footnote or in a perfunctory manner are waived." (quoting P.R. Tel. Co., Inc. v. San Juan Cable LLC, 874 F.3d 767, 770 (1st Cir. 2017))). - 21 - 747 n.12 (Mass. 2021) (explaining that a jury may contemplate a

broad range of factors "[i]n determining 'whether an alternative

design is reasonable and whether its omission renders a product

not reasonably safe'" (quoting Restatement (Third) of Torts:

Products Liability § 2 (Am. Law Inst. 1998))).

In sum, the estate has established a triable issue on

whether there was a reasonable alternative design that could have

prevented or mitigated Prieto's injuries. The district court

therefore incorrectly granted summary judgment on the design

claims.

2.

We turn next to the two remaining claims, each of which

relates to the absence of a barrier on the wall-side entry. The

estate first contends that there is evidence that Cincinnati never

installed the wall-side barrier, which, it contends, constitutes

negligence and a breach of the warranty of merchantability. See

Restatement (Third) of Torts: Products Liability § 2 cmt. c (Am.

Law Inst. 1998) (explaining that "[c]ommon examples of

manufacturing defects" include "products that are . . .

incorrectly assembled"). The estate separately argues that

regardless of whether Cincinnati installed the wall-side barrier,

the fact that there was no barrier in place on the day of the

accident demonstrates that Cincinnati had been "negligent in

failing to fulfill its obligation to service, inspect, [and] - 22 - maintain the [system]" and in failing to warn InMetal that the

wall-side entrance was unguarded.8

These claims share a common feature in that they all

require the estate to establish causation; specifically, that the

absence of the wall-side barrier caused Prieto's injury because

Prieto likely arrived at the pinch point from the wall-side

entrance. See Fernandes v. Union Bookbinding Co., Inc., 507 N.E.2d

728, 734 (Mass. 1987) ("In order to invoke the implied warranty of

merchantability . . ., a plaintiff must demonstrate that the

damages complained of were proximately caused by a defect or breach

which existed at the time of the sale."); Corsetti v. Stone Co.,

483 N.E.2d 793, 805 (Mass. 1985) ("In an action based on

negligence, the plaintiffs '[have] the burden of proving that a

defect attributable to the manufacturer's negligence caused the

injury.'" (alteration in original) (quoting Carney v. Bereault,

204 N.E.2d 448, 451 (Mass. 1965)); Reckis v. Johnson & Johnson, 28

8 We do not understand the estate to have premised its negligent maintenance claim on the absence of additional safety mechanisms apart from the wall-side barrier. While the estate does note that Cincinnati's service worker, Jose Nunez, "never reported the lack of guarding or any other safety mechanisms to anybody at InMetal," the estate specifically identified the "[i]nadequate [g]uarding" as the basis of its maintenance claim. To the extent the estate sought to claim that Cincinnati negligently failed to report "any other safety mechanisms" to InMetal, the claim is undeveloped and thus waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). - 23 - N.E.3d 445, 464 (Mass. 2015) (explaining that "[t]o prevail on

their claim of failure to warn, the plaintiffs had to establish

that the lack of this warning caused" the harm (citing Laaperi v.

Sears, Roebuck & Co., 787 F.2d 726, 729 (1st Cir. 1986))).

Establishing causation does not require the estate to

"point out the exact way [the] accident happen[ed]." Solimene v.

B. Grauel & Co., K.G., 507 N.E.2d 662, 667 (Mass. 1987) (quoting

McLaughlin v. Bernstein, 249 N.E.2d 17, 22 (Mass. 1969)). It does,

however, require the estate to identify "evidence from which

reasonable [people] may conclude that it is more probable" than

not that the missing wall-side barrier caused Prieto's injury.

Mullins v. Pine Manor Coll., 449 N.E.2d 331, 339 (Mass. 1983).

Here, we agree with the district court that there is no evidence

from which a reasonable factfinder could conclude that it was more

likely than not that Prieto reached the pinch point from the

wall-side entry than from an alternative entry point. It is

undisputed that there were at least two other ways by which Prieto

could have reached the pinch point location: (1) he could have

relied on the stepladder that was located next to the laser

operator control station or (2) he could have scrambled over the

load frame. The record is otherwise devoid of evidence showing

how Prieto reached the location on the day of the accident or at

any previous time.

- 24 - The estate attempts to fill this evidentiary gap by

relying on the testimony of Daniel Pond, Prieto's predecessor at

InMetal. Pond testified that he would periodically access the gap

through the wall-side entry because the other entry options were

"more of a pain." The estate argues that like Pond, Prieto "most

likely would [also] have entered through the unguarded, wall-side

gap."

Such evidence does not "elevate . . . surmise from the

realm of the possible to the realm of the probable," Tobin v. Fed.

Express Corp., 775 F.3d 448, 452 (1st Cir. 2014), especially where

the record otherwise contains no evidence indicating how Prieto

may have accessed the gap. That Pond preferred a particular entry

point does not mean that Prieto shared that preference. Pond never

met Prieto, nor is there evidence that they ever communicated on

any topic. Moreover, Pond's preferred approach was not necessarily

the obvious one; as Pond testified, it required "shimmying," i.e.,

side-stepping with his back against the handler and feet facing

the load frame, eight feet down a channel that was less than a

foot wide. Assigning Pond's preference to Prieto would amount to

speculation and conjecture. And "[s]peculation about mere

possibilities, without more, is not enough to stave off summary

judgment." Id. Accordingly, the district court properly granted

Cincinnati summary judgment on the claims related to the absence

of the wall-side barrier. - 25 - III.

For the reasons discussed, we affirm the award of summary

judgment on the installation, maintenance, and failure to warn

claims; vacate summary judgment on the design claims; and remand

for further proceedings consistent with this opinion. Each party

shall bear its own costs.

So ordered.

- 26 -