[Not for Publication - Not to be Cited as Precedent]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

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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
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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
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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,
2 The 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.

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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
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?

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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
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.

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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
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.

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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
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conclusion, it was impermissible for the district court to reach

it in the context of a motion for summary judgment.

Reversed.