          United States Court of Appeals
                      For the First Circuit


No. 18-1848

                         RAYMOND LAPOINTE,

                       Plaintiff, Appellant,

                                v.

                     SILKO MOTOR SALES, INC.,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. M. Page Kelley, Magistrate Judge]


                              Before

                       Howard, Chief Judge,
                 Lynch and Lipez, Circuit Judges.


     David J. Oliveira for appellant.
     John F. Gleavy, with whom Lynch & Lynch was on brief, for
appellee.


                           June 12, 2019
           LIPEZ, Circuit Judge.        In this diversity tort action,

Raymond Lapointe seeks damages for a severe knee injury sustained

when he slipped on fluid at an auto dealership that his company

had been hired to clean.    Finding that the dealership neither had

a duty to warn Lapointe of the puddle nor acted negligently in

failing to address it, the district court granted summary judgment

for defendant Silko Motor Sales, Inc.       After careful review of the

facts and the law, we affirm.      The district court properly found

that Silko could not be found liable because Lapointe was "hurt by

the very hazard he was required to remedy."            Callahan v. Bos.

Edison Co., 509 N.E.2d 1208, 1210 (Mass. 1987).

                                   I.

           We summarize the relevant facts, which are undisputed

unless otherwise noted. Silko hired Jan-Pro Cleaning Systems ("Jan

Pro") to clean its dealership, and the parties' written agreement

specified that the cleaning tasks included "[m]achine scrub[bing]

all service floors" six times per week, using a degreasing chemical

provided by the dealership.     At the time of his fall in July 2013,

Lapointe   was   a   regional   manager    for   Jan   Pro,   where   his

responsibilities included filling in for the company's franchise

owners when they were sick.     On the evening that Lapointe slipped,

he was substituting at Silko for a franchisee, as he had done there

on previous occasions.




                                 - 2 -
            Lapointe      cleaned    other     parts   of   the    Silko    facility

before entering the service area and, before scrubbing the floors

there, he decided to dispose of trash in a dumpster outside.                      He

headed toward the button that opened the service area garage door.

As he walked around a pallet holding engine parts, he lost his

balance and fell.        Lapointe then noticed an accumulation of oil or

transmission fluid on the floor near the pallet, which he estimated

to be about eight inches in diameter and one-sixteenth of an inch

deep.      After   his    fall,     Lapointe    completed     his    work    at   the

dealership, including cleaning the substance from the floor where

he fell.

            Lapointe testified in his deposition that the pallet was

waist high and placed on the floor in an area that Jan Pro

ordinarily cleaned with an "auto scrubber" machine, using the

Silko-provided degreaser. Describing the general area of his fall,

Lapointe reported that "[s]ometimes there was a car on the ground,

sometimes it was elevated like that so we could clean underneath

it. . . .    This was a typical scene in a garage.                There was always

three or four or five vehicles in the garage at night."                    Asked if,

in the past, he would "clean up spots or oils or other transmission

fluids," Lapointe responded:

            Absolutely.    You got to understand, this
            entire floor, there was oil and grease
            everywhere. People had been working all day
            long.    This particular one was a puddle
            because the engine had leaked. But typically


                                       - 3 -
          there would be oil and grease everywhere. And
          the machine with the chemical that they
          purchased, it was a very good chemical, and
          the machine did a very good job, but I hadn't
          gotten to that point yet.

          In a statement containing six facts in addition to those

the parties agreed upon, see Mass. Loc. R. 56.1, Lapointe asserted

that "he had never encountered stored automotive parts (engines,

transmissions) as he did on the night in question and, therefore,

was not aware of the risk of having those parts leak pools of

slippery fluids."   He also stated that Silko's policy called for

its employees to "fully drain[]" automotive parts before placing

them for disposal and to cover any spills resulting from drainage

with absorbent mats.

          In March 2016, nearly three years after his fall and

injury, Lapointe sued Silko in federal court, asserting common law

claims for negligence and failure to warn.1     In the negligence

count, Lapointe alleged that Silko breached its duty to maintain

its premises in a reasonably safe condition for persons whose

presence was foreseeable, causing the service area floor to be

"covered with a substance that presented an unreasonable risk of

harm" to him.   In the second count, Lapointe alleged that Silko

breached its duty to warn him of that hazardous condition.




     1 Lapointe did not report the incident to Silko at the time
it occurred, and the dealership first learned of his fall when it
received the complaint filed in this case.


                              - 4 -
          Silko moved for summary judgment, which the district

court granted primarily based on its determination that Silko owed

Lapointe no duty of care because "the danger posed by the oil on

the floor was objectively open and obvious."       Lapointe v. Silko

Motor Sales, Inc., No. 1:16-cv-10532-MPK, 2018 WL 3849855, at *4

(Aug. 10, 2018). The court found inapplicable a "narrow exception"

to "the open and obvious rule in Massachusetts" that imposes a

duty to remedy a blatant danger "where the defendant should have

foreseen that injury was likely."       Id.   In addition, the court

noted Massachusetts precedent holding that a property owner does

not owe a duty of care to a plaintiff where "the danger presented

to the plaintiff was one that he had been hired to cure."        Id.

(quoting Ganley v. Percuoco, No. 004043, 2002 WL 389681, at *1-2

(Mass. Super. Jan. 7, 2002)).

          On appeal, Lapointe argues that the summary judgment for

Silko should be vacated and the case remanded for trial. He claims

that the district court improperly failed to view the evidence in

the light most favorable to him and "[i]nvad[ed] the province of

the jury by deciding genuine issues of material fact."

                                 II.

A. Standard of Review

          We review a grant of summary judgment de novo, construing

the facts, and drawing all reasonable inferences from those facts,

in favor of the non-moving party.        Rivera-Rivera v. Medina &


                                - 5 -
Medina, Inc., 898 F.3d 77, 87 (1st Cir. 2018).            Summary judgment

is proper only when "there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(a).     "Facts are material when they have the

'potential to affect the outcome of the suit under the applicable

law.'"    Cherkaoui v. City of Quincy, 877 F.3d 14, 23 (1st Cir.

2017) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.

1996)).

B. Applicable Law

           State law supplies the substantive rules of decision in

a federal diversity case, Easthampton Congregational Church v.

Church Mut. Ins. Co., 916 F.3d 86, 91 (1st Cir. 2019), and the

parties agree that Massachusetts law controls.            The parties also

agree that the case of Poirier v. Town of Plymouth, 372 N.E.2d 212

(Mass. 1978), determines the outcome of this appeal, although they

urge different dispositions based on its analysis.

           In Poirier, the Massachusetts Supreme Judicial Court

("SJC") revisited its longstanding "hidden defect" rule, which

placed an injured employee seeking a remedy from a property owner

"in the position of one who has assumed all risks except those

that he can prove were 'hidden.'"          Id. at 224.        Specifically

overruling   that   precedent   as   applied   to   the   employee   of   an

independent contractor, the court held that a property owner's

duty to contractors' employees going forward would be "the same as


                                 - 6 -
that owed all other lawful visitors on the premises," i.e., "to

take   those       steps   to   prevent   injury       that   are    reasonable     and

appropriate under all the circumstances."                 Id. at 227.

              However, in expanding the duty of property owners to the

employees of independent contractors, the SJC in Poirier retained

a carve-out for risks "that are inherent in the job and of which

the employee is fully aware."             Id.     This limitation reflects the

general rule in Massachusetts that a landowner's duty to visitors

"does not extend to dangers that would be obvious to persons of

average intelligence."           O'Sullivan v. Shaw, 726 N.E.2d 951, 954

(Mass. 2000).         In other words -- placing the general rule in

context -- a person hired to eliminate a hazard ordinarily would

be aware of the potential for injury from that hazardous condition.

In addition, allocating some risk to an individual who agrees to

remove a dangerous condition accords with the limits Massachusetts

places   on    a    landowner's    duty    to    any    person      lawfully   on   the

property: "[A] landowner is 'not obliged to supply a place of

maximum safety, but only one which would be safe to a person who

exercises      such    minimum    care    as     the   circumstances      reasonably

indicate.'"        Id. (quoting Lyon v. Morphew, 678 N.E.2d 1306, 1310

(Mass. 1997)).        An independent contractor hired to remedy a hazard

would reasonably be expected to exercise a different level of

"minimum care" concerning the danger than an individual who entered

the property for a different reason and was unaware of the risk.


                                         - 7 -
                                  III.

           Lapointe   argues   that    the    district   court   improperly

granted   summary   judgment   for    Silko   because    material   factual

disputes remain concerning whether the dealership's failure to

clean up the fluid on which he slipped, or to warn him of its

presence, constituted actionable negligence.             Lapointe asserts

that a jury could find that the hazard was not "open and obvious"

because the puddle was blocked by the waist-high pallet holding

engine parts.   Thus, he contends, a jury could find that Silko had

a duty to eliminate the hazard or, at a minimum, to warn him about

it.

           Massachusetts tort principles, as described above, do

not support Lapointe's contentions.       To the contrary, the facts of

this case fall squarely within the carve-out for injury to an

independent contractor resulting from a risk inherent in the job

he was hired to perform.       See Poirier, 372 N.E.2d at 227.          Jan

Pro's cleaning obligations at Silko included removing oil and other

fluids from the floors of the service area, and Lapointe expressly

stated that, in the past, "there was oil and grease everywhere" on

"this entire floor."    Indeed, after his fall, Lapointe "swept and

scrubbed the floor [because he] had a responsibility to do it."

Put simply, Lapointe's job at Silko -- as he described it --

included removing slick substances from the floors, and he knew




                                 - 8 -
that this hazardous condition might exist anywhere in the service

area.

             Lapointe's       attempts     to   take      this    case   outside

Massachusetts' "inherent risks" precedent are unavailing.                     We

accept, for purposes of summary judgment, that it was unusual for

a pallet of engine parts to be in the service area and that the

loaded platform prevented Lapointe from seeing the puddle of

automotive fluid until he was upon it.             Those facts, however, do

not   elevate    the   duty    of   care   Silko   owed    to    Lapointe   under

Massachusetts law.      If the pallet obscured a section of the floor,

Lapointe -- given his experience with "oil and grease everywhere"

-- could only reasonably be expected to be more cautious when

traversing that area than on the other occasions he worked at

Silko.      See O'Sullivan, 726 N.E.2d at 954 (noting the obligation

to "exercise[] such minimum care as the circumstances reasonably

indicate" (emphasis added) (quoting Lyon, 678 N.E.2d at 1310)).

Likewise, the unusual presence of engine parts stacked on a pallet

could only reasonably support a jury finding that Lapointe should

have been more alert to the possibility of automotive fluids on

the floor, not less so.2


        2
       The contrast between the facts of this case and those in
Poirier are instructive. The plaintiff in Poirier was an employee
of an independent contractor hired to paint a town water tank, and
he was injured when a stationary ladder attached to one of the
tanks' legs sprang loose and threw him to the ground. 372 N.E.2d
at 216.   Upholding a verdict for the plaintiff, the SJC stated


                                      - 9 -
          Nor   is   Lapointe's   view     bolstered    by   the   deposition

testimony of two Silko managers, which Lapointe cites in arguing

that a jury could find that the dealership failed "to take those

steps to prevent injury that are reasonable and appropriate under

all the circumstances."     Poirier, 372 N.E.2d at 227.             Lapointe

points to testimony by Silko's service manager and operations

director stating that: (1) the pallet was placed in a clean service

bay ordinarily used for storage, (2) the dealership requires

automotive parts to be drained before they are stored, and (3) the

dealership purchases oil-absorbent mats to cover spills.            Lapointe

contends that this testimony would allow a jury to find that he

would not have anticipated a build-up of oil or other fluid near

the pallet and, if one had developed, he would have expected Silko

either to cover it with a mat or otherwise eliminate the hazard.

          The   managers'    testimony       might     be    significant   in

assessing Silko's duty to other persons -- i.e., where the duty is

generally one of reasonable care, see O'Sullivan, 726 N.E.2d at

954 -- but the dealership's methods for storing automotive parts

and responding to fluid leaks do not create a duty to Lapointe

where the hazard he encountered "was one that he had been hired to




that the jury could "reasonably find the defendant negligent in
failing to prevent the dangerous condition presented by the
inadequately secured ladder."   Id. at 221.    Significantly, the
plaintiff in Poirier was only hired to paint the water tank, not
to alleviate "the dangerous condition" that caused his injury.


                                  - 10 -
cure," Ganley, 2002 WL 389681, at *2.        That is, Silko's efforts to

minimize the risk from leaking automotive fluids by draining

equipment and, if necessary, placing mats over spills does not

mean that Lapointe could expect oil-free floors.           Rather, his job

was to clean up slick spots everywhere in the service area, a

responsibility he acknowledged in his deposition.            Lapointe thus

"knowingly and voluntarily undert[ook]" the risk of encountering

errant fluids on the floor, Poirier, 372 N.E.2d at 227, and the

record   reveals   no    basis   for    shifting     to   Silko   the   risk

Massachusetts law allocates to him.3

          In   sum,     Poirier's    adoption   of   ordinary     negligence

principles for the employees of independent contractors does not

entitle Lapointe to a jury determination on whether Silko breached




     3 Lapointe asserts that his role at Silko differed materially
from that of independent contractors in other cases because
"[d]efendant did not hire [p]laintiff to remedy this particular
spill but, rather, to clean the floor area in the service
department." Appellant's Br. at 21 (footnote omitted). We find
no significance in that distinction. The hazard at issue here, as
Lapointe described it in his deposition, was "oil and grease
everywhere."
     In addition, this case is distinguishable from Callahan,
which Lapointe highlights in support of his position. There, an
independent contractor engaged to remove debris from a boiler was
injured when he slipped on water that had accumulated because of
a malfunctioning pump. 509 N.E.2d at 1209. In upholding the trial
court's rejection of the defendant's request for an "inherent risk"
instruction, the appeals court observed that "removing water from
the drainage trenches and risks inherent in that activity were not
part of the case." Id. at 1210. In other words, unlike this case,
Callahan did not involve an injury caused "by a condition [the
plaintiff] had been hired to remedy." Id.


                                    - 11 -
a duty of care to him.        On the record before us, with Lapointe

acknowledging   that    oil    could   be   anywhere   on   the   floor,

Massachusetts law -- as set forth in Poirier -- placed the risk of

injury from a slick surface on the independent contractor hired to

remove that "very hazard."      Callahan, 509 N.E.2d at 1210.

          For the foregoing reasons, the district court's grant of

summary judgment for defendant Silko is affirmed.

          So ordered.




                                 - 12 -
