Opinion
No. 95-1699E
November 12, 1996
MEMORANDUM OF DECISION AND ORDER ON THIRD PARTY DEFENDANT BROWNING-FERRIS INDUSTRIES, INC.'S MOTION FOR SUMMARY JUDGMENT
Third Party Defendant Browning-Ferris Industries, Inc. ("BFI") moves for summary judgment, pursuant to Mass. R. Civ. P. 56, on all counts of the third party claim. Third Party Plaintiff Massachusetts Port Authority ("Massport") alleges that it is entitled to indemnification in accordance with the terms of its contract with BFI or to contribution for any liability Massport may incur to Martin Lepe (Lepe), the plaintiff, for his injuries. For the reasons stated below, BFI's motion for summary judgment is ALLOWED.
BACKGROUND
The underlying action arises out of personal injuries suffered by Lepe on December 26, 1992 while he was working for Empire Cleaning Co., Inc. ("Empire"). Lepe alleges that he fell on a foreign substance as he was throwing trash into a dumpster owned by BFI. The dumpster was located at terminal E of Logan Airport.
At the time of the accident, BFI and Massport had a contract for rubbish removal services. The contract makes BFI responsible to furnish rubbish removal services and to supply appropriate equipment. As part of BFI's rubbish removal services, BFI was responsible for immediately removing any spillage occurring during the rubbish collection. Under the terms of its contract, BFI agrees to indemnify Massport for losses arising out of or resulting from BFI's negligence. Massport is required by the contract to give BFI reasonable notice of any claim which "in any way would result in a claim of indemnification. . . ."
Massport received notice that Lepe was making a claim on or about January 28, 1994. Lepe filed suit against Massport on March 23, 1995; shortly thereafter, Massport filed a third party action against Lepe's employer, Empire. Massport did not give BFI notice of any claim by Lepe until it served BFI with the third party complaint on April 17, 1996.
BFI relies on the plaintiff's deposition to show that it is entitled to summary judgment. Massport relies on the same deposition in support of its opposition. Lepe testified that Empire was not the only entity that used the dumpster. A restaurant on the third floor, according to Lepe, also threw their trash out there, as did a cafeteria. He testified that every day that he worked there, he would see persons from these establishments putting trash out and that, around the dumpster, there was always coffee and soda thrown and spilled around. Lepe testified that it was really gross all around there. There was always trash everywhere. Asked who put it there, Lepe testified: Well, I can't really put the blame on anyone because a lot of different people from the restaurant threw the trash out. But the restaurant was the only one who threw trash out that had a lot of coffee and soda. Lepe stated further that the restaurant employees were the messiest when they threw out their trash. More specifically, he testified that he observed that [w]hen they would throw the trash bags in, all the coffee would spill out. . . . According to Lepe, when a bag of trash is carelessly thrown into a dumpster, everything starts to fall out. Lepe testified that on many occasions he personally observed that when restaurant employees threw out their trash, everything would spill out.
Asked if a bag put into the dumpster would leak out of the dumpster onto the ground, Lepe responded: . . . if they re-put in there with care, no, unless the bag is broken or something. On the day Lepe fell he had not seen any broken bags in the dumpster.
At the time Lepe slipped, he was in the process of throwing a bag into the dumpster. The dark brown liquid on which he fell was right under the opening of the dumpster where everything would spill and all the bags spilled out were visible. Lepe did not see anyone take an act which resulted in the liquid on which he slipped being on the ground. He testified that no one other than the restaurant throws out that kind of liquid.
DISCUSSION
Summary judgment is warranted where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact, "and [further] that the moving party is entitled to judgment as a matter of law." Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).
To show the absence of a triable issue of material fact, a moving party must demonstrate that the opposing party has no reasonable expectation of proving an essential element of its case. Brunner v. Stone Webster Engineering Corp., 413 Mass. 698, 705 (1992); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). A party, such as BFI, which does not bear the burden of proof at trial may demonstrate the absence of a triable issue of fact either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party is unlikely to submit proof of this element of trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis, 410 Mass. at 716.
Once the moving party establishes the absence of a triable issue, the party opposing the motion must come forward with specific facts establishing the existence of a genuine issue of material fact. It may not rest on its pleadings or mere assertions of disputed facts to defeat the motion. LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
Any doubt as to the existence of a material fact will be resolved against the movant, Parent v. Stone Webster Engineering Corp., 408 Mass. 108, 112-23 (1990), and all facts proffered in admissible form by the nonmoving party will be deemed true. G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263 (1991). Fact-finding has no place on a motion for summary judgment. See Kelley v. Rossi, 395 Mass. 659, 663 (1985). The question is "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A judge's mere belief that the movant is more likely to prevail at trial is not a sufficient basis for granting summary judgment. Flesner, 410 Mass. at 809.
In order to recover on its third party claims, Massport must be able to prove that BFI was negligent and that its negligence caused Lepe's injuries. "[A] complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial" and mandates summary judgment in favor of the moving party. Kourouvacilis v. General Motors Corp., 410 Mass. at 711 (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Massport has completely failed to set forth any evidence of any fault on the part of BFI that was a substantial factor in bringing about Lepe's injuries.
The liquid on which Lepe fell could have found its way on the ground near the dumpster in at least three independent ways: BFI could have spilled the liquid while collecting rubbish from the dumpster; the liquid could have leaked from the dumpster if the dumpster was improperly sealed; or the actions of some other party for which BFI is not responsible could have accounted for the presence of the liquid.
Massport needs to show, therefore, that the evidence is capable of permitting a jury to infer that, more likely than not, the liquid was present because of some fault on the part of BFI. Cf. Stepakoff v. Kantar, 393 Mass. 836, 843 (1985). It is not enough for Massport to demonstrate that the evidence would support a inference that it is possible, or even that it is reasonable, that BFI was at fault.
The facts in the record contain no evidence from which a jury reasonably may infer that BFI was responsible for Lepe's injuries. There is no testimony that anyone saw BFI spill anything on the day in question or that BFI habitually spilled trash when it emptied its dumpsters and then failed to take corrective action, or even that it ever had been observed spilling liquid as it emptied its dumpsters. There is no evidence as to when BFI last emptied the dumpster. The mere fact that coffee and soda were commonly found about the dumpster does not support an inference that, more likely than not, BFI put it there.
There also is no evidence, testimonial or otherwise, that on the day in question the dumpster leaked liquid onto the ground. Lepe speculated that, if a broken bag is put in the dumpster, liquid in the dumpster would leak out onto the ground, but he did not say that he had ever observed such leakage. As Massport itself points out in its opposition to BFI'S motion for summary judgment, Lepe has no knowledge concerning the circumstances under which trash bags would leak from the dumpster. . . . There was no testimony that the liquid on which Lepe slipped was in an area where things may leak out of the dumpster onto the ground. If the dumpster's sealing was defective such that the dumpster leaked, any such leak would not be relevant unless the leak was near the spot where Lepe observed the liquid on which he fell or there is evidence from which it could be determined that a liquid leaked from one location would likely travel to the area where Lepe fell. On the day Lepe fell, he did not see any broken bags. He testified that the liquid on which he fell was under the opening of the dumpster where trash spilled out when it is thrown into the dumpster. The fact that there was liquid there does not support an inference that it was probably there because of leakage. There is no evidence that anyone examined the dumpster, before or after the accident, and found that it was improperly sealed. There is no claim that the area around the dumpster was in BFI's exclusive control; the mere proximity of the dumpster to the accident is not sufficient evidence from which it could be inferred that BFI was at fault. The "common experience of mankind" does not support Massport's argument that the mere fact that liquid is on the ground near a dumpster necessarily means that it there because of some fault of the dumpster owner. See Kourouvacilis, 410 Mass. at 717. Lepe testified that he frequently saw trash spill while workers from a terminal restaurant were throwing it into the dumpster, and Massport's own answers to interrogatories posed by BFI concede that it is "not clear whether the alleged liquid debris . . . was spilled outside the dumpster or leaked from the dumpster."
Massport argues that BFI is not entitled to summary judgment because it failed to produce credible evidence that it did not cause or contribute to Lepe's injuries. BFI does not, however, have the burden of showing, either at the summary judgment stage or at trial, that it did not cause plaintiff's injuries. BFI has met its burden of showing that, at trial, Massport cannot expect to carry Massport's burden of proof that BFI negligently contributed to the plaintiff's injuries.
ORDER
For the foregoing reasons, it is ORDERED that Third Party Defendant Browning-Ferris Industries, Inc.'s Motion for Summary Judgment is hereby ALLOWED.
E. Susan Garsh Justice of the Superior Court