          [Not for Publication - Not to be Cited as Precedent]

         United States Court of Appeals
                      For the First Circuit


No. 01-1810

                           JAMES R. HOYT,

                      Plaintiff, Appellant,

                                  v.

                  ROCHE BROTHERS SUPERMARKETS,

                       Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Douglas P. Woodlock, U.S. District Judge]


                                Before

                    Torruella, Circuit Judge,
                  Stahl, Senior Circuit Judge,
                 and O’Toole,* District Judge.



     Paul A. Rinden, with whom Rinden Professional Assoc., was
on brief, for appellant.
     H. Charles Hambelton, with whom Kimberly M. McCann and
Gibson & Behman, P.C., were on brief, for appellee.




                          January 18, 2002
_____________________
*Of the District of Massachusetts, sitting by designation.
            STAHL, Senior Circuit Judge.                Appellant James R. Hoyt

("Hoyt") appeals from a district court order granting summary

judgment    in   favor   of    appellee         Roche   Brothers    Supermarkets

("Roche Brothers").      In this personal injury case, Hoyt alleged

that he sustained injuries to his leg due to Roche Brothers'

negligence.      The district court held that no reasonable jury

could conclude that it was more likely than not that Roche

Brothers had caused the dangerous condition that led to Hoyt's

injury.    We reverse, finding that the district court relied on

impermissible     inferences       in    favor     of    the   moving   party    in

reaching its holding.

            The injury in question occurred as follows.                      On the

morning of December 15, 1997, Hoyt, a resident of Concord, New

Hampshire and a truck driver for Lilly Transportation, stopped

at   the   loading   dock     at   a    Roche    Brothers      market   in   Acton,

Massachusetts, to deliver eggs.               A co-worker accompanied Hoyt.

The loading dock could accommodate two trucks and, after waiting

briefly for one truck to leave, Hoyt pulled in next to another

truck.     At that time, a number of empty pallets -- portable

wooden platforms on which truck drivers often deliver their

loads -- were stacked on the loading dock.                       While Hoyt was

unloading eggs from his truck onto a cart on the loading dock,

several pallets fell on him, injuring his leg.                    The pallets in


                                        -3-
question had been leaning up vertically against a stack of

horizontally stacked pallets, which the parties agree created a

dangerous situation.       Hoyt brought this case in district court

based on diversity jurisdiction.

           Under Massachusetts law, a property owner has a duty

to lawful visitors to maintain his property in a reasonably safe

state.     Mounsey v. Ellard, 363            Mass.    693,    707    (1973).     A

property   owner    is   liable   if    he    has    notice   that    an    unsafe

condition existed.       Notice is satisfied if 1) the property owner

or its employee caused the unsafe condition; 2) the property

owner or its employee had actual knowledge of the condition; or

3) the unsafe condition was present and evident for a time long

enough that the property owner or its employee should have known

about it. Oliveri v. Mass. Bay Transp. Auth., 363 Mass. 165, 167

(1973).    The only question on appeal is whether the district

court    properly   granted   summary        judgment   in    favor    of    Roche

Brothers on the issue of whether Roche Brothers or its employee

caused the unsafe condition -- that is, the vertical stacking of

the pallets -- that led to the pallets falling on Hoyt's leg.1



    1 The district court also found against Hoyt under prong 3
(whether the unsafe condition had existed long enough so that
Roche Brothers should have had notice and corrected it) as well
as under a theory of negligence on the part of Roche Brothers
for failing to implement a safety policy against stacking
pallets on their side. Hoyt has not appealed these rulings.

                                       -4-
           Summary judgment is proper where the evidence shows

that "there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c).         A court may enter summary judgment

"against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial."    Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The question of whether a Roche Brothers employee caused the

unsafe condition is such an element.        Hence, in order to escape

summary judgment, Hoyt must present evidence sufficient for a

reasonable factfinder to find that a Roche Brothers employee

caused the pallets to be stacked vertically.           When evaluating

such evidence, the court must draw all reasonable inferences in

favor of the nonmovant, Cippollone v. Yale Indus. Prod., Inc.,

202 F.3d 376, 378 (1st Cir. 2000), in this case, Hoyt.

           We review the grant of summary judgment de novo.           Id.

No direct evidence was offered in this case about who placed the

pallets    that   injured   Hoyt.   The   parties   instead   put   forth

circumstantial evidence showing how the pallets were generally

handled.    The relevant evidence was provided by several Roche

Brothers employees.     George Hayes, the Roche Brothers receiving

clerk at the time of the accident, testified that truck drivers


                                    -5-
typically brought pallets into the receiving area of the store

to unload the merchandise and that they then took the empty

pallets away.         He stated that some truck drivers preferred to

leave the loaded pallets at the store to be unloaded by a sales

representative or a Roche Brothers employee and that in that

case   the   empty     pallets        were       retrieved     at    a   later    time.

According to Hayes, pending pickup by the truck drivers, empty

pallets were stored on the loading dock.                        Because the pallets

were   generic       and   unmarked         as    to    ownership,       truck    drivers

retrieving      pallets       could    take       any    empty       pallets     awaiting

removal.

             Hayes    also     testified         that    he    was    responsible    for

keeping the receiving area clean and organized, including the

stacking of empty pallets.             He explained that when he first came

into work early in the morning he collected any empty pallets in

the store proper and stacked them.                     Then, at six o'clock a.m.,

when he opened the door, he moved the stacked pallets to the

loading dock.         During the course of the day, he continued to

stack empty pallets on the loading dock.                      James Lundy, the store

manager    at   the    time    of     the    accident,        confirmed     that    empty

pallets were stacked on the loading dock, among other places,

for driver pickup.           However, both Hayes and Lundy, as well as

David Kerr, the director of human resources for Roche Brothers,


                                            -6-
testified that in any event it was the practice and the policy

of   Roche   Brothers   and    its   employees   to   stack   the   pallets

horizontally and not vertically and to re-stack any pallet found

lying on its side.2

             The   record     thus   indicates   that    Roche      Brothers

employees, and specifically Hayes, were responsible for stacking

empty pallets at the Acton store.          There is no evidence in the

record that anyone other than Roche Brothers employees stacked



      2The meaning of the following lines from Lundy's testimony
has been strongly contested by the parties:
          Q: Do you stack [pallets] on the loading platform?
          A: Yes.
          Q: Both horizontally and vertically?
          [Roche Brothers's attorney]: Objection.
          [Lundy]: Yes.
   Hoyt has argued that, from the sequence of questions put to
Lundy, he is entitled to an inference that Roche Brothers
employees actually stacked empty pallets vertically as well as
horizontally. The district court disagreed and found that, in
the context of Lundy's overall testimony repeatedly stressing
that it was Roche Brothers' practice and policy to stack empty
pallets only horizontally, Lundy's response was merely a
confirmation of the hazard that the company's policies were
designed to guard against (Memorandum and Order, No. 99-12172-
DPW, at 7 n. 2 (D. Mass., May 2, 2001)). We agree with Hoyt that
the plain meaning of Lundy's response could support the
inference Hoyt has asked us to draw. However, contrary to what
Hoyt has argued, the district court's reluctance to draw that
inference from Lundy's testimony seems to stem not from a
refusal to draw the inference in favor of Hoyt, but from its
judgment that the plain meaning misrepresents what Lundy meant
to say. In light of our ruling below, we need not resolve the
meaning of Lundy's response and leave for trial the question of
whether Lundy's answer can fairly be understood as an admission
that Roche Brothers employees stacked some empty pallets
vertically.

                                     -7-
empty pallets on the loading dock.      The evidence admittedly

demonstrates that truck drivers handled pallets in the sense

that they brought them, loaded with merchandise, into the store

and that they picked up empty pallets from the stacks on the

loading dock and took them away in their trucks for future use.

But the record contains no evidence to support the position that

truck drivers stacked empty pallets or dealt with empty pallets

in any way other than to pick them up and take them away.

           The district court, however, came to the opposite

conclusion -- that is, that "sometimes pallets ended up leaning

vertically because of the drivers handling of them" (Memorandum

and Order, No. 99-12172-DPW, at 3 (D. Mass., May 2, 2001)

(hereinafter   "Order")).     Specifically,   the   district   court

pointed out that Hayes had testified that he occasionally would

see pallets left vertically, but that "when you receive in a

store for a period of time you have certain rules and they know

that's a no, no with me." 3    The court concluded that in that


    3   The relevant Hayes testimony was as follows:
           Q. Did you have a -- did you have a practice of
           keeping pallets stored horizontally rather than leaned
           up vertically?
           A. That was the policy.
           Q. To keep them stored horizontally?
           A. Positively.
           Q. So if someone left a pallet vertically you'd pick
           it up and put it down horizontally?
           A. Yes.
           Q. Did you see that occasionally?

                                -8-
context "they" referred to truck drivers (Order at 7, n. 1).

The court also found it important that numerous individuals not

employed by Roche Brothers had been in the vicinity at the time

of the accident, with the implication that any one of them may

have placed the pallets that injured Hoyt (Order at 7).            Hence,

the district court concluded, a Roche Brothers employee was no

more likely than someone else to have placed the pallets that

injured Hoyt.

           We cannot agree.      In the context of Hayes' testimony,

it is a reasonable inference that the ambiguous "they" referred

to the truck drivers, but it is an equally reasonable inference

that "they" referred to other Roche Brothers employees, who may

have occasionally left the pallets leaning vertically, despite

Hayes' "rules."       More to the point, the conclusion that Hayes

was referring to truck drivers requires us to draw an inference

in favor of Roche Brothers, the moving party, which is forbidden

in the context of the summary judgment motion.              Furthermore,

with   respect   to   the   district   court's   second   point,   in   the

absence of evidence connecting the truck drivers to the stacking

of pallets, the fact that a number of nonemployees of Roche


           A. Oh, yeah it happened. It wasn't a common practice.
           When you receive in a store for a period of time you
           have certain rules and they know that's a no, no with
           me.


                                   -9-
Brothers, including a truck driver, were in the vicinity when

the accident occurred bears no weight on the question of who

caused the pallets in question to be stacked vertically.4

          In summary, the record evidence supports the position

that Roche Brothers employees regularly stacked empty pallets.

In contrast, we have no evidence that the truck drivers handled

the empty pallets in any way other than to remove them from the

premises and place them in their trucks.                 The conclusion that

truck drivers on occasion caused empty pallets to be placed

vertically   can   only     be   reached   by    drawing    inferences    from

Hayes's   ambiguous   testimony       that      "they"    occasionally    left

pallets vertically, from the general circumstances that truck

drivers had access to the loading dock, and from the fact that

they picked up pallets for the purpose of taking them away.

While   ultimately    the    evidence      at    trial    may   support   this




    4  On appeal Roche Brothers makes the additional argument,
not discussed by the district court, that "the very fact that
the pallets were vertical proves that a Roche Brothers employee
did not stack the pallet, as they would have then been
horizontal based upon Roche Brothers policies and procedures and
the clear testimony of George Hayes."        We also find this
argument unpersuasive. It is an equally tenable position that,
despite Hayes' usual practice and Roche Brothers' policy of
stacking pallets horizontally, Roche Brothers employees in this
instance deviated from that practice and stacked the pallets
vertically.   With no evidence to support one or the other
position, we cannot infer from Hayes' testimony that the
vertical stacking was not done by him or another employee.

                                    -10-
conclusion, it was impermissible for the district court to reach

it in the context of a motion for summary judgment.

         Reversed.




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