Fithian v. Zofchak

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1898



 STEPHEN C. FITHIAN, JR., p.p.a. STEPHEN C. FITHIAN, SR., ET AL.,



                     Plaintiffs, Appellants,



                                v.



                   EDWARD REED AND MARTHA REED,



                      Defendants, Appellees.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



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


Before



                    Selya, Boudin and Lynch,

                                

                        Circuit Judges.


Thomas J. Callahan, with whom James J. McGovern and McGovern

& Sullivan were on brief, for appellants.

      David M. O'Connor, with whom John E. Matosky and O'Connor &

Associates were on brief, for appellees.


February 29, 2000


SELYA, Circuit Judge.  In this case, the district court

concluded as a matter of law that the risk of a neighbor's

snowblower discharging snow and ice against a dining room window

and breaking it, injuring a toddler standing inside, was

unforeseeable, and that the homeowners therefore did not breach

their duty of reasonable care.  The plaintiffs appeal.  Finding no

evidence of any precaution that either defendant could or should

have taken to avoid this unfortunate accident, we affirm.

  As the summary judgment standard requires, we recount the

facts in the light most hospitable to the non-movants (here, the

plaintiffs).  See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st

Cir. 1990).  In January 1996, Lisa Fithian and her two young

children, Floridians all, were visiting her parents, Edward and

Martha Reed, in Hingham, Massachusetts.  On an inclement morning,

John Zofchak, the Reeds' neighbor, trying to be helpful, undertook

to clear their driveway with his snowblower (despite the fact that

two cars were parked in the area).  Snow was a novelty to the

youngsters, so Mrs. Reed (while Mrs. Fithian was upstairs)

encouraged them to join her at the family room window and watch the

snowblower in operation.

  After Mrs. Fithian returned, Mrs. Reed went outside in

hopes of thanking Mr. Zofchak for the unsolicited favor.  Not

wanting to approach the snowblower too closely for fear of injury,

Mrs. Reed stood in front of the house for roughly fifteen minutes

and vainly attempted to catch Mr. Zofchak's attention.  Meanwhile,

Mrs. Fithian, desiring to give the fascinated children a better

view of the snowblowing activity, brought them into the dining room

(where the windows were closer to the driveway).

  Mr. Reed entered the dining room shortly thereafter.  At

that point, Mr. Zofchak had begun to clear a narrow strip of

driveway between the parked cars and the residence.  Since the

presence of the vehicles prevented him from directing the discharge

to the left, he angled it to the right (i.e., toward the house). 

A few seconds later, the dining room window shattered and flying

glass struck and severely injured three-year-old Stephen Fithian,

Jr.

  Invoking diversity jurisdiction, see 28 U.S.C.  1332(a),

Stephen and his parents sued the Reeds in the United States

District Court for the District of Massachusetts.  Following

pretrial discovery, the defendants moved successfully for summary

judgment.  This appeal ensued.

  We review orders granting or denying summary judgment de

novo.  See Garside, 895 F.2d at 48.  Summary judgment is

appropriate if, after marshaling the evidence in the light most

favorable to the non-movant, no genuine issue of material fact

exists and the record reveals that the movant is entitled to

judgment as a matter of law.  See Woods-Leber v. Hyatt Hotels of

P.R., Inc., 124 F.3d 47, 49-50 (1st Cir. 1997); Garside, 895 F.2d

at 48; see also Fed. R. Civ. P. 56(c).  State law supplies the

substantive rules of decision in diversity cases, see Erie R.R. Co.

v. Tompkins, 304 U.S. 64, 78 (1938); Woods-Leber, 124 F.3d at 50,

and the parties agree that Massachusetts law governs in this

instance.

  Under Massachusetts law, a tort plaintiff must show that

(1) the defendant owed him a duty, (2) the defendant breached that

duty, (3) the breach constituted a proximate cause of the ensuing

harm, and (4) the breach caused actual injury.  See Jorgensen v.

Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir. 1990); Swift

v. United States, 866 F.2d 507, 508-09 (1st Cir. 1989).  Although

such matters most often comprise grist for the jury's mill, they

may be resolved on summary judgment when the facts lead ineluctably

to a particular outcome.  See Woods-Leber, 124 F.3d at 51; see also

Mullins v. Pine Manor College, 449 N.E.2d 331, 338 (Mass. 1983);

Roderick v. Brandy Hill Co., 631 N.E.2d 559, 560 (Mass. App. Ct.

1994).  This is such a case:  as the district court ruled, there is

no way in which a rational factfinder, on this record, supportably

could conclude that the defendants breached an actionable duty to

the plaintiffs.  We explain briefly.

  As homeowners and hosts, the defendants had a duty to

take into account the extant circumstances (including those known

to them and those of which they should have known) and to maintain

their property in a reasonably safe condition.  See Mounsey v.

Ellard, 297 N.E.2d 43, 52 (Mass. 1973); Polak v. Whitney, 487

N.E.2d 213, 215 (Mass. App. Ct. 1985).  It was, therefore,

incumbent upon them to act reasonably in regard to factors such as 

the likelihood of injury to persons foreseeably upon the premises,

the seriousness of any potential injury, and the burdens associated

with risk avoidance.

  This standard   reasonable care under all the

circumstances   is a flexible one.  As the plaintiffs suggest, it

may at times involve a duty to prevent foreseeable injury caused by

a third person who has come upon a defendant's premises.  See Flood

v. Southland Corp., 616 N.E.2d 1068, 1075 (Mass. 1993); Jesionek v.

Massachusetts Port Auth., 378 N.E.2d 995, 997 (Mass. 1978).  On

other occasions, it may impose an obligation to warn guests of an

unreasonable, nonobvious danger of which the host is aware.  See

Polak, 487 N.E.2d at 215-16.  The standard does not, however, bind

homeowners to anticipate and guard against "what is unusual and

unlikely to happen, or what, as is sometimes said, is only remotely

and slightly probable."  Zompanti v. Ferguson, 142 N.E.2d 903, 904

(Mass. 1957) (quoting Falk v. Finkelman, 168 N.E. 89, 90 (Mass.

1929)).  In fine, the standard does not make a homeowner an insurer

of a guest's safety, nor does it require her to exercise extreme

prudence, employ heroic measures, or display utter prescience.  See

Toubiana v. Priestly, 520 N.E.2d 1307, 1310 (Mass. 1988).

  The touchstone, then, is ordinary prudence   and the

critical question becomes "whether the jury reasonably could have

concluded that, in view of all the circumstances, an ordinarily

prudent person in the defendant's position would have taken steps,

not taken by the defendant, to prevent the accident that occurred." 

Id.  In most cases (though not always), this question correlates

with the foreseeability of the risk of harm, for the more

foreseeable the injury, the higher society's expectations that

reasonable people will take precautions.  See Whittaker v.

Saraceno, 635 N.E.2d 1185, 1188-89 (Mass. 1994)  (holding that

society should not place the burden of preventing a violent crime

on a property owner without proof that the owner knew or should

have known of danger and possible preventive steps, even though

crime is always possible and to a certain extent foreseeable);

Mounsey, 297 N.E.2d at 52 (explaining that the duty of care is

defined in part by the likelihood of injury).

  In this case, our canvass of the record convinces us that

no reasonable jury could have determined that the defendants failed

to take any precaution that ordinary prudence demanded.  To be

sure, the plaintiffs assert conclusorily that Mr. Reed should have

monitored the use of a dangerous instrumentality on his property  

but the record does not disclose either that Mr. Reed had advance

notice of Mr. Zofchak's intentions or that he had any practical

opportunity to stop Mr. Zofchak in the act.  Even on the

plaintiffs' version of the facts, Mr. Reed became aware that

snowblowing was in progress only moments before the accident

occurred.

  Mrs. Reed likewise lacked both notice and any realistic

opportunity to alter the course of events.  In all events, the

record is uncontradicted that she tried without success to hail Mr.

Zofchak.  Given the swirling snow, the noise made by the machinery,

and the danger inherent in approaching the running snowblower, this

lack of success is entirely understandable.  And the plaintiffs

have been unable to suggest any other way that Mrs. Reed

rewardingly could have intervened   there is, for example, no

evidence to suggest that she had the vocal capacity to be heard

from a distance over the noise of the machinery.

  In an effort to deflect the force of these points, the

plaintiffs argue that the defendants should have removed the cars

from the driveway, thus enabling the snowblower to maneuver more

freely and to discharge the accumulation away from the house, or

that they should have warned the Fithians not to go near the dining

room window.  These arguments do not withstand scrutiny.  In the

first place, nothing in the record indicates that either defendant

knew that snow was being discharged against the house in time to

take any effective action.  In the second place, the nisi prius

roll is barren of any evidence that the parked vehicles presented

a realistic danger.

  The fact that the Reeds lacked the opportunity to take

precautions pertains here as well.  Given Mr. Zofchak's unsolicited

appearance, moving the cars necessarily would have entailed

approaching a man operating a concededly dangerous instrumentality

and asking him to halt work while the vehicles were moved.  Mrs.

Reed considered making such an approach (albeit for another

reason), and nothing in the record serves to cast doubt upon the

validity of her conclusion that approaching the running snowblower

would have been so perilous as to fall outside the realm of

ordinary prudence.  Finally, it was Mrs. Fithian, not the Reeds,

who brought the children into the dining room, and as the only

adult near the side of the house for any length of time, she was in

the best position to anticipate any looming danger.  The Reeds,

therefore, would not be expected to warn her (or those in her

charge).  See Polak, 487 N.E.2d at 215-16.

  The case law confirms the appropriateness of brevis

disposition here.  To overcome summary judgment in a tort suit

against an owner or occupant of real property, a plaintiff must put

forth evidence of negligence, i.e., evidence of the defendant's

failure to exercise due care.  See Toubiana, 520 N.E.2d at 1310. 

Evidence that a precaution feasibly could have been taken to

prevent a foreseeable injury sometimes may suffice to create a

genuine issue of material fact as to negligence.  See, e.g.,

Collins v. Northwest Airlines, Inc., 875 F. Supp. 64, 67-68 (D.

Mass. 1995) (holding that airline's ongoing opportunity to enforce

a policy against children entering baggage room created genuine

issue of material fact as to negligence).  Conversely, when an

accident happens so quickly that those in the vicinity simply do

not have time to react constructively, their failure to prevent the

accident is not evidence of negligence.  See id. (holding, as a

matter of law, that airline employees did not act negligently in

failing to prevent an accident occurring seconds after child

arrived in restricted area).  It follows inexorably that where, as

here, a landowner had no feasible opportunity to remove the

instrument of injury that was brought into a child's zone of

exposure by a third party, she cannot be held liable for an ensuing

injury.  See Roderick, 631 N.E.2d at 560; see also Bandanza v. Town

of Norwood, 277 N.E.2d 300, 301 (Mass. 1971).

  If more were needed   and we doubt that it is   we note

that the record does not contain a shred of evidence that

discharges from snowblowers often break windows.  This lacuna

renders the case at hand analogous to Ted's Master Service, Inc. v.

Farina Bros., 178 N.E.2d 268, 270 (Mass. 1961), in which the

Supreme Judicial Court approved a directed verdict in favor of an

excavating company whose drilling was alleged to have damaged

buildings (by vibration) well outside the radius of a standard

survey.  There, as here, the defendant had no forewarning, and the

injury that occurred simply was not foreseeable.

  We need go no further.  Once their good-hearted neighbor

took it upon himself to start snowblowing, there was nothing the

Reeds reasonably could have been expected to do to prevent the

broken window.  Moreover, absent good reason to know that

snowblowers were likely to smash windows, the Reeds had no reason

to keep their grandchildren away from the dining room window during

the snowblowing operation.  Because the plaintiffs have not

proposed any feasible precaution, much less any precaution required

by ordinary prudence, that would have averted this freak accident,

the district court appropriately entered summary judgment.



Affirmed.