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Thorell v. ADAP6/13/2003
Bristol.
February 12, 2003
Negligence, Loading dock. Evidence, Hearsay, Vicarious admission.
In this negligence action, the plaintiff seeks to recover for injuries sustained when he slipped and fell while making a commercial delivery to the defendant, ADAP, Inc. (ADAP). The site of the fall was a loading dock area on property owned by defendant S.B. Realty Limited Partnership (S.B. Realty) and leased to ADAP. The plaintiff contends that he slipped on hydraulic fluid leaking from a trash compactor that was leased by ADAP from defendant Frade's Disposal, Inc. (Frade's), a commercial refuse company that retained responsibility for periodically emptying, servicing and maintaining the compactor and associated equipment.
A judge of the Superior Court granted summary judgment to all three defendants on the ground that there was no proof from which it reasonably could be inferred that the plaintiff was injured by a dangerous or unsafe condition that was, or should have been, known to the defendants. We agree with the motion judge that the plaintiff's evidence was insufficient to establish the liability of S.B. Realty and Frade's. However, because the plaintiff produced evidence, possibly admissible against ADAP as a vicarious admission on the issue of liability, the summary judgment for ADAP must be reversed and the case remanded for further proceedings.
Background. We recite the pertinent facts in the summary judgment record, viewed in the light most favorable to the plaintiff. See Alioto v. Marnell, 402 Mass. 36, 37 (1988). At approximately 1:00 A.M. on December 31, 1997, the plaintiff, a truck driver, made a delivery to ADAP's New Bedford store. In the presence of two ADAP employees, later identified as Jerry Magnifico and Josh McGowan, the plaintiff got out of the cab, retrieved a tool and walked beside his truck along the top of an elevated area (berm), intending to lower the vehicle's tailgate. As he proceeded down the sloped surface of the berm, the plaintiff felt his foot slip out from under him. He fell off the berm and struck his head with the tool he had been carrying.
According to the plaintiff, Magnifico and McGowan came to his assistance and asked if he wanted an ambulance. He declined, but went inside the ADAP office for a few minutes. Then, when the three men went back outside, the two ADAP employees pointed to a sheen on the pavement of the berm where the plaintiff had been walking when he slipped. One of them (the plaintiff did not recall which one) volunteered that the sheen was due to fluid leaking from a nearby trash compactor on the top of the berm and that the leaking had gone on for several years. The other agreed. After the shiny area was pointed out to him, the plaintiff observed from a distance that oil was coming down the side of the berm and forming a puddle, but he did not further inspect the area at that time.
The plaintiff's account of this interchange was not confirmed, apparently because Magnifico and McGowan are no longer in ADAP's employ and have not been located. The only other details in the summary judgment record about the two ADAP employees are the plaintiff's observation that Magnifico was in charge of the store that night, and ADAP's acknowledgment that Magnifico was the parts manager and that both men's job descriptions would have obliged them to report the incident, which apparently they did not do.
A few weeks later, but less than a month after the accident, the plaintiff returned to the site and observed an oily substance on the berm. While he was there, the plaintiff took some pictures that showed staining on the pavement. A week later, the plaintiff came to the scene y
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