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Walter GADOWSKI, Plaintiff, Appellant, v. UNION OIL COMPANY OF BOSTON, Defendant, Appellee

United States Court of Appeals for the First Circuit1964-01-03No. No. 6181
326 F.2d 524

Summary

Holding. The judgment of the District Court is affirmed. The plaintiff was either a business invitee owed a duty of care, or alternatively, he was contributorily negligent as a matter of law because an obvious and avoidable ice hazard on a dock wide enough to permit safe passage did not obligate the property owner to ensure maximum safety when the plaintiff could have protected himself by exercising minimal care.

A ship's cook employed on a tanker docked at the defendant's pier went ashore on a personal errand in January 1961. Upon his return approximately two and a half hours later, after weather conditions had produced snow and ice, he stepped on a patch of ice on the wooden dock and broke his leg. The jury found in his favor despite answering a special interrogatory that a floodlight illuminating the dock area was on at the time of the accident. The trial court entered judgment for the defendant, reasoning that the special verdict finding showed no evidence of negligence.

On appeal, the court addressed whether the plaintiff was owed a duty of care as a business invitee or merely as a licensee. The court determined that a seaman's status as a business invitee does not depend on whether he travels on ship-related business, and that the plaintiff had a jury question on this point since the dock was the only means of access ashore. However, the court concluded that even assuming business invitee status, the plaintiff was contributorily negligent as a matter of law. The icy patch was small and avoidable, the surrounding weather conditions adequately warned of ice hazards, and the dock was wide enough to permit safe passage by simply avoiding the dangerous spot.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Status of seaman as business invitee despite travel on personal errand
  • Duty of property owner to warn of or remediate obvious, avoidable hazards
  • Contributory negligence as matter of law when invitee encounters foreseeable weather hazard

Procedural posture

The plaintiff appealed a judgment notwithstanding the verdict entered by the District Court in favor of the defendant, despite the jury's general verdict for the plaintiff.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

ALDRICH, Circuit Judge.

At about 7.00 P.M. on an evening in January 1961 the plaintiff, chief cook aboard a tanker unloading at defendant’s pier at Revere, Massachusetts, having finished his duties aboard ship, went ashore on a personal errand. As he crossed the wooden dock which was six to eight feet wide, he noticed near the end a patch of ice about 10 inches wide and 15 inches long. He returned by taxi two and a half hours later, but had to descend some distance from the dock because of accumulated snow and ice. The weather was clear. The plaintiff testified that at this time the flood light which had previously illuminated the end of the dock was off and that he was in a hurry and did not notice the patch of ice he had seen previously and, stepping on the dock, slipped thereon, breaking his leg. At the trial, in reply to a special question, the jury answered that the flood light was still on, but returned a general verdict for the plaintiff. Reciting in a memorandum that the special finding meant there was no evidence of negligence, and without reaching the question of con- tributary negligence the district court entered judgment n. o. v. for the defendant.

The first question on plaintiff’s appeal is the extent of the duty owed him by the defendant. Defendant argues that the plaintiff was a mere licensee and not a business invitee, essentially on the ground that he was not going ashore on ship’s business. The defendant is apparently unaware of the fact that a seaman has been held to have “business” anywhere. Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107; Warren v. United States, 1951, 340 U.S. 523, 71 S.Ct. 423, 95 L.Ed. 503 (seaman injured in dance hall); Koistinen v. American Export Lines, Inc., N. Y. City Ct., 1948, 83 N.Y.S.2d 297, 194 Misc. 942 (brothel). The only way for the plaintiff to go ashore was across the dock. There was at least a jury issue as to whether he was a business invitee. Hayes v. Boston Fish Market Corp., 1946, 319 Mass. 556, 66 N.E. 2d 713; cf. Pereira v. Gloucester Community Pier Ass’n, 1945, 318 Mass. 391, 61 N.E.2d 658. The fact that the vessel paid no wharfage charges to the defendant could be regarded as an irrelevant contractual amenity.

In the light of the special verdict the plaintiff cannot claim a hidden defect, but he asserts that the mere presence of the icy spot, unsanded, made the dock unsafe. At the same time, of course, he denies contributory negligence.

The existence of negligence and the absence of contributory negligence, or, more exactly, the absence of negligence and the existence of contributory negligence, are sometimes but two ends of the same stick. Either one can say that, there is no duty to warn even a business invitee of a danger that is obvious (and avoidable) and which he should have expected, and hence no negligence, O’Hanley v. Norwood, 1944, 315 Mass. 440, 53 N.E. 2d 3; Letiecq v. Denholm & McKay Co., 1951, 328 Mass. 120, 102 N.E.2d 86, or one can say that even a business invitee is “obliged to use his faculties for his own protection and to guard himself from obvious hazards,” see Benjamin v. O’Connell & Lee Mfg. Co., 1956, 334 Mass. 646, 649, 138 N.E.2d 126, which a “cursory glance * * * would have revealed,” see Gambardello v. H. J. Seiler Co., 1956, 335 Mass. 49, 52, 138 N.E.2d 603, and hence that there is contributory negligence as matter of law. A landowner, in other words, 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. The circumstances here fully warned the plaintiff of the possible presence of snow and ice, yet he paid no attention. This was not a case where a party sees a danger, but must traverse it, cf. Hayes v. Boston Fish Market Corp., supra; Correira v. Atlantic Amusement Co., 1938, 302 Mass. 81, 18 N.E.2d 435; Dewire v. Bailey, 1881, 131 Mass. 169, or at least must do so or adopt an inconvenient alternative, cf. Dipper v. Milford, 1897, 167 Mass. 555, 46 N.E. 122, but is a case where all that plaintiff had to do was to look for a danger that he should have anticipated, Letiecq v. Denholm & McKay Co., supra, and follow that portion of the path that was free therefrom. Cf. Greenfield v. Freedman, 1952, 328 Mass. 272, 103 N.E.2d 242. On his own testimony the dock was amply wide to proceed without stepping on this small icy piece.

Judgment will be entered affirming the judgment of the District Court.

. The defendant admitted that it customarily inspected the dock, and salted or sanded it when necessary.