Opinion
14-P-1293
09-24-2015
STEPHEN FINNEGAN & another v. KINGPIN ENTERTAINMENT, INC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Stephen and Diane Finnegan (Stephen, Diane), appeal from the allowance of summary judgment for the defendant, Kingpin Entertainment, Inc. (Kingpin), and the dismissal of their complaint by a judge of the Superior Court. The Finnegans brought suit for damages related to Stephen's ruptured hamstring sustained while bowling on premises owned and operated by Kingpin, and for Diane's claim of loss of consortium. The question presented on appeal is whether the plaintiffs have raised a genuine issue related to a material fact; namely, whether the defendant's use of oil to condition the surface of the bowling lane was responsible for Stephen's injury. See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
The facts are undisputed except as otherwise noted, in which case we view the evidence "in the light most favorable to the plaintiff" as the nonmoving party. Quinn v. Morganelli, 73 Mass. App. Ct. 50, 50 (2008). The approach to a bowling lane extends to the foul line, which borders the area in which the bowler must remain under the rules in order to receive credit for pins downed by the ball. The defendant stipulated that oil was applied to the bowling lane surface in order to maintain the manufacturer's warranty. The defendant also provided evidence that it employed a "buffer zone" of approximately eight inches between the foul line and the application of any oil to the bowling lane. However, for purposes of our consideration, we must accept partial contrary testimony by the plaintiffs' engineer that some oil, i.e., "fluid drops," was observed in the lane closer than eight inches to the foul line, albeit during an inspection that took place after Stephen was injured.
In his deposition, Stephen stated that he observed no problem "anywhere with the surface," that he saw no "foreign substance in any area," and that he experienced no "problem with [his] footing in any of the deliveries of the ball prior to the time [he] fell." He was unable to offer any evidence that anyone else in his group had problems with footing, slipped, or complained about the surface. He answered, "I suspect so," when asked whether his foot had "hit the oil" in the lane, i.e., over the foul line. He also agreed with the characterization that it was his "best estimate" that he slipped on oil in the lane. Finally, Stephen asserted that after he had fallen he put his hands down and could "feel oil, I could feel something very slippery. I have no idea what it was but it was very, very slippery."
The other members of the plaintiffs' group who offered testimony likewise stated in response to identical questioning that they observed "no foreign substance" in the area leading to the foul line.
Discussion. "Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002). "[W]e recount the facts in the summary judgment materials in the light most favorable to the nonmovant, drawing all permissible inferences and resolving any disputes or conflicts in his favor." DiPietro v. Sipex Corp., 69 Mass. App. Ct. 29, 30 (2007). In this case, the party moving for summary judgment is the defendant; as it does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent's case, or "by demonstrating that proof of that element is unlikely to be forthcoming at trial." Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991).
We agree with the motion judge that the plaintiffs failed to demonstrate evidence "tending to show that there was oil present in any area normally transversed by those engaged in the act of bowling." The drops of oil observed by the plaintiffs' expert in the lane at some point well after the event, and in a location described with no real specificity, did not provide a justiciable basis for a fact finder to conclude there was oil near the foul line either on the approach or on the lane at the time of the fall. The unidentified substance Stephen found on his hands after he fell is somewhat suggestive, but ultimately unavailing. He could specify neither his location nor the substance itself ("I have no idea what it was but it was very, very slippery"). From this inconclusive evidence and the lack of any assertion that he identified oil on his shoes or anywhere that he or his companions had been bowling, it would require speculation to conclude that he came into contact with oil placed near the foul line by the defendant. "Pure speculation . . . cannot support a motion for summary judgment." Id. at 812 n.4.
To the extent the plaintiffs rely on a theory of neglect related to a failure to post notices warning of slippery conditions, that reliance is also unavailing. The defendant's evidence on this point was extremely detailed and covered numerous examples of cautionary signage, including evidence that there were signs located above the monitors on each lane and at the ball return area at each lane. It was uncontroverted that prior to beginning the game, at least one member of the plaintiffs' party was required to push a button to acknowledge the warning on the monitor. There was yet additional evidence that a sign was posted at the front entrance to the property stating, "Crossing the foul line -- the line right before the lane itself -- may cause you to fall on the slippery lane."
The defendant's evidence was that these signs read, "WARNING DO NOT CROSS FOUL LINE[.] Condition on lane beyond foul line is slippery."
Stephen testified that his party switched lanes twice, raising the inference that the button had to be pushed several times.
In response, the plaintiffs did not present evidence that these signs were not posted, stating only that they were not observed by those in his party; that assertion is insufficient to raise a genuine dispute. To the extent the defendant had a duty to warn customers of a potential hazard, the plaintiffs presented no genuine dispute that the duty was fulfilled.
Judgment affirmed.
By the Court (Berry, Grainger & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 24, 2015.