United States Court of Appeals 

For the First Circuit 

No. 17-1993 

EILEEN POTVIN, 

Plaintiff, Appellant, 

v. 

SPEEDWAY LLC, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Judith G. Dein, U.S. Magistrate Judge] 

Before 

Torruella, Selya and Lynch, 

Circuit Judges. 

Dante G. Mummolo, with whom Steven Kfoury and Iannella and 

Mummolo were on brief, for appellant. 

 Mark A. Darling, with whom Devine C. Nwabuzor and Litchfield 

Cavo LLP were on brief, for appellee. 

June 4, 2018 
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SELYA, Circuit Judge. This appeal arises out of a 

lawsuit brought by a customer, plaintiff-appellant Eileen Potvin, 

against the proprietor of a self-service gas station in Tewksbury, 

Massachusetts (the Station). The facts are straightforward (and 

largely undisputed). 

On the afternoon of January 20, 2012, the plaintiff, 

accompanied by her boyfriend, drove her car into the Station, which 

was then owned and operated by Hess Corporation (Hess). She 

stopped alongside a gas pump, with the driver's side adjacent to 

the pump. While her boyfriend went inside to pay for the gasoline, 

the plaintiff exited her vehicle and went in search of a squeegee 

to clean her windshield. Unable to find one, she began walking 

backwards toward her car. She asserts that the heel of her right 

shoe got caught in a groove in the pavement, causing her to fall. 

As matters turned out, the groove was part of a series 

of grooves, known in the trade as positive limiting barriers 

(PLBs), which are required by Massachusetts law.1 Each PLB is 

comprised of a series of five concentric grooves cut into the 

concrete surrounding a gas pump. Because the purpose of a PLB is 

to contain a gasoline spill of up to five gallons, each groove 

 1 Massachusetts regulations require that self-service gas 

stations be approved by the State Department of Fire Services, see 

527 Mass. Code Regs. § 1.05, 42.7.4.5 (2015), which in turn 

mandates that all self-service gas stations install and maintain 

PLBs. 
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must be at least three-quarters of an inch wide and three-quarters 

of an inch deep. The record makes pellucid that the PLBs at the 

Station satisfied this specification. 

The plaintiff's fall caused bodily injury. As a result, 

she filed suit against Hess in a Massachusetts state court. She 

claimed that Hess was negligent because the presence of the PLBs 

constituted a hazardous condition and Hess failed to warn of that 

hazard. Citing diversity of citizenship and the existence of a 

controversy in the requisite amount, Hess removed the action to 

the federal district court. See 28 U.S.C. §§ 1332(a)(1), 1441(a). 

Once in federal court, the parties consented to proceed 

before a magistrate judge.2 See id. § 636(c); see also Fed. R. 

Civ. P. 73(b). While the suit was pending, defendant-appellee 

Speedway LLC (Speedway) acquired certain of Hess's assets, 

including the Station. In connection with this transfer of 

interest, Speedway assumed certain of Hess's liabilities, 

including the responsibility for the plaintiff's lawsuit. To 

facilitate this assumption of liability, Hess moved to substitute 

Speedway as the party-defendant. See Fed. R. Civ. P. 25(c). The 

district court granted this motion. There is no basis for any 

suggestion that the substitution of Speedway for Hess affected the 

 2 For ease in exposition, we take an institutional view and 

refer to the proceedings before the magistrate judge as 

proceedings before the district court. 
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district court's jurisdiction. Cf. Freeport-McMoRan, Inc. v. K N 

Energy, Inc., 498 U.S. 426, 428-29 (1991) (per curiam) (holding 

that addition of non-diverse party under Fed. R. Civ. P. 25(c) did 

not deprive federal court of jurisdiction). 

Following the close of discovery, Speedway sought 

summary judgment. See Fed. R. Civ. P. 56(a). Although the 

plaintiff opposed Speedway's motion, the district court granted 

it. See Potvin v. Speedway LLC, 264 F. Supp. 3d 337, 345 (D. Mass. 

2017). The court concluded that the PLBs, if dangerous at all, 

presented an open and obvious danger, so that the Station had no 

duty to warn customers about that danger. See id. at 344-45. This 

timely appeal ensued. 

We recognize, of course, that a court may enter summary 

judgment only if, after appraising all of the evidence in the light 

most favorable to the nonmovant and drawing all reasonable 

inferences to her behoof, the record discloses no genuine issue of 

material fact and indicates that the movant is entitled to judgment 

as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 250 (1986); Fithian v. Reed, 204 F.3d 306, 308 (1st Cir. 

2000). We review the entry of summary judgment de novo, 

constrained to assay the record in the same manner as the ordering 

court. See Chung v. StudentCity.com, Inc., 854 F.3d 97, 101 (1st 

Cir. 2017). 
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We recognize, too, that in a case founded on diversity 

jurisdiction, state law supplies the substantive rules of 

decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); 

Gomez v. Stop & Shop Supermkt Co., 670 F.3d 395, 397 (1st Cir. 

2012). Here, the parties agree that Massachusetts law controls. 

To prevail on a claim for negligence under Massachusetts 

law, "a plaintiff must carry the burden of proving the elements of 

duty, breach, causation, and damages." Geshke v. Crocs, Inc., 740 

F.3d 74, 77 (1st Cir. 2014). Although the issues of breach, 

causation, and damages typically are determined by a factfinder, 

see Cracchiolo v. E. Fisheries, Inc., 740 F.3d 64, 69 (1st Cir. 

2014), the existence vel non of a legally cognizable duty is 

typically a question of law, with which the court must wrestle, 

see O'Sullivan v. Shaw, 726 N.E.2d 951, 954 (Mass. 2000); Davis v. 

Westwood Grp., 652 N.E.2d 567, 569 (Mass. 1995). 

From this point forward, we need not tarry. We have 

explained before that when a "trial court correctly takes the 

measure of a case and authors a convincing decision, it rarely 

will serve any useful purpose for a reviewing court to wax 

longiloquent" merely to hear its own words resonate. Eaton v. 

Penn-Am. Ins. Co., 626 F.3d 113, 114 (1st. Cir. 2010); accord Seaco 

Ins. Co. v. Davis-Irish, 300 F.3d 84, 86 (1st Cir. 2002); Ayala v. 

Union de Tronquistas de P.R., 74 F.3d 344, 345 (1st Cir. 1996). 

This is such a case. Consequently, we affirm the judgment below 
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for substantially the reasons explicated by the district court, 

adding only four sets of comments. 

First. Even though the plaintiff concedes that the PLBs 

at the Station were open and obvious to the average person, she 

posits that a genuine issue of material fact lurks as to whether 

they were dangerous. Viewing this allegedly disputed fact in the 

light most favorable to her cause, she argues that Speedway had a 

duty to warn of the danger that the PLBs presented. Like the 

district court, we disagree. 

A property owner generally owes a duty to protect lawful 

visitors from dangerous conditions on its land. See O'Sullivan, 

726 N.E.2d at 954; Toubiana v. Priestly, 520 N.E.2d 1307, 1310 

(Mass. 1988). But this duty is not the duty of an insurer: it 

does not require a property owner to "supply a place of maximum 

safety." O'Sullivan, 726 N.E.2d at 954 (quoting Lyon v. Morphew, 

678 N.E.2d 1306, 1310 (Mass. 1997)). Instead, a property owner is 

only obliged to maintain its premises in a condition that "would 

be safe to a person who exercises such minimum care as the 

circumstances reasonably indicate." Id. (quoting Lyon, 678 N.E.2d 

at 1310). 

Assuming, favorably to the plaintiff, that the PLBs were 

dangerous — a matter on which we take no view — the plaintiff 

admits that they were open and obvious. Indeed, the record places 

this verity beyond hope of contradiction: it makes manifest that 
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the PLBs were plainly and instantly visible to the eye of the 

reasonable observer. Under Massachusetts law, property owners are 

relieved of any duty to warn of open and obvious conditions, 

including those that present open and obvious dangers, since it is 

logical to expect that a lawful visitor exercising reasonable care 

for her own safety would not fall victim to such "blatant hazards." 

O'Sullivan, 726 N.E.2d at 954-55; see Davis, 652 N.E.2d at 570 

n.9; Thorson v. Mandell, 525 N.E.2d 375, 379 (Mass. 1988); Le Blanc 

v. Atl. Bldg. & Supply Co., 84 N.E.2d 10, 12 (Mass. 1949); see 

also Gorfinkle v. U.S. Airways, Inc., 431 F.3d 19, 24 (1st Cir. 

2005) (applying Massachusetts law). 

This rule makes eminently good sense. "Implicit in the 

open and obvious doctrine . . . is the assumption that the warning 

provided by the open and obvious nature of the danger is by itself 

sufficient to relieve the property owner of its duty" to warn 

visitors about the dangerous condition. Papadopoulos v. Target 

Corp., 930 N.E.2d 142, 151 (Mass. 2010). Any additional warning 

would be superfluous. See Dos Santos v. Coleta, 987 N.E.2d 1187, 

1194 (Mass. 2013). 

That ends this aspect of the matter. Because there is 

no question that the PLBs were open and obvious, Speedway had no 

duty to warn visitors about them (whether or not they could be 

regarded as dangerous). 
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Second. In a related vein, the plaintiff argues that 

the proprietor of the Station ought to have anticipated that 

customers would be distracted by their surroundings. This 

potential for distraction, the plaintiff suggests, gave rise to a 

special duty to take extra precautions to warn customers about the 

PLBs. This suggestion, which is raised for the first time on 

appeal, is not properly before us. "If any principle is settled 

in this circuit, it is that, absent the most extraordinary 

circumstances, legal theories not raised squarely in the lower 

court cannot be broached for the first time on appeal." Teamsters, 

Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co., 

953 F.2d 17, 21 (1st Cir. 1992). There are no extraordinary 

circumstances here, and this principle applies foursquare to doom 

the plaintiff's newly minted argument.3 

Third. The plaintiff contends that, notwithstanding the 

open and obvious nature of the PLBs, the proprietor of the Station 

had a duty to remedy the danger that they presented. This 

contention, raised below in only a desultory manner, has a tenuous 

toehold in the case law. In certain circumstances, the existence 

of an open and obvious danger will not "relieve the landowner of 

all duties to lawful entrants with regard to that danger." Dos 

 3 We note in passing that the case at hand would, in any 

event, seem to be a notoriously poor vehicle for advancing a 

"distraction" argument. For no readily apparent reason, the 

plaintiff was walking backwards when she caught her heel and fell. 
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Santos, 987 N.E.2d at 1193 (emphasis in original). Those 

circumstances, though, are narrowly cabined. See Cracchiolo, 740 

F.3d at 72-73 (discussing evolution of exception in Massachusetts 

case law). Not all dangers must be remediated. See Dos Santos, 

987 N.E.2d at 1197; Davis, 652 N.E.2d at 570. 

The Massachusetts Supreme Judicial Court has explained 

the exception pithily: "[w]hile the open and obvious doctrine may 

relieve the defendant of its duty to warn, the doctrine does not 

mean that the defendant can maintain its property 'in an 

unreasonably unsafe condition as long as the unsafe condition is 

open and obvious.'" Dos Santos, 987 N.E.2d at 1197 (citations 

omitted). To come within the exception, the plaintiff must show 

that the property owner has some heightened reason to anticipate 

that the unreasonably unsafe condition, though open and obvious, 

presents a danger likely to cause physical harm. See id. at 1193 

(citing Restatement (Second) of Torts § 343A cmt. f (1965)). 

Dos Santos illustrates this point. There, the court 

held that the exception might apply and remanded the issue 

concerning the property owner's duty to remedy a danger created by 

an open and obvious condition. See id. at 1198-99. In that case, 

though, the property owner had deliberately created an 

unreasonably unsafe condition that he should have known was 

dangerous by setting up a trampoline next to a shallow inflatable 
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pool, with "the very purpose" that visitors would attempt to jump 

from the trampoline into the pool. Id. at 1198. 

The case at hand is a horse of an entirely different 

hue, and the plaintiff has adduced no facts that would suffice to 

bring her case within this exception. To begin, the Station was 

(for aught that appears) a typical gas station with typical PLBs. 

Those PLBs were required by and conformed to state law. See supra 

note 1. The defendant had no discretion about where to place them. 

Moreover, the plaintiff has not alleged — let alone offered facts 

to show — that there was anything unreasonably unsafe about either 

the design or the maintenance of the PLBs. These gaps are fatal 

to her "duty to remedy" claim. Cf. Dos Santos, 987 N.E.2d at 1196-

97 (comparing dangers inherent in defendant's idiosyncratic pooltrampoline setup, which might give rise to a duty to remedy, with 

dangers inherent in typical pool, which would not give rise to 

such a duty). 

In all events, the plaintiff has never proposed a 

feasible remedy that might alleviate the danger that she claims is 

inherent in the PLBs. Although she mentions possibilities such as 

warning signs and brightly colored paints, warnings are not 

remedies. Indeed, allowing a plaintiff to conflate warnings with 

remedies would frustrate settled doctrine. After all, in cases in 

which "the only viable theory of negligence is a negligent failure 

to warn, the open and obvious nature of the danger causing the 
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injury will . . . relieve the landowner of any duty vis-à-vis that 

danger." Id. at 1194-95. 

To say more about this distinction would be pointless. 

Where, as here, the plaintiff does not propose a feasible remedy, 

a property owner cannot be held to answer for a putative duty to 

remedy. See Cohen v. Elephant Rock Beach Club, Inc., 

63 F. Supp. 3d 130, 146 (D. Mass. 2014). 

Fourth. On motion, see Fed. R. Civ. P. 25(c), the 

district court substituted Speedway for Hess. The plaintiff 

challenges this ruling. Our review is for abuse of discretion. 

See Burka v. Aetna Life Ins. Co., 87 F.3d 478, 482 (D.C. Cir. 

1996); Explosives Corp. of Am. v. Garlam Enters. Corp., 817 F.2d 

894, 904 (1st Cir. 1987). Simply put, we discern no abuse of 

discretion. 

Rule 25(c) applies to a broad spectrum of situations. 

See Negrón-Almeda v. Santiago, 579 F.3d 45, 53 (1st Cir. 2009). 

Among other things, a district court has considerable leeway to 

allow the substitution of parties in order to "facilitate the 

conduct of the litigation." Maysonet-Robles v. Cabrero, 323 F.3d 

43, 49 (1st Cir. 2003). Here, the order for substitution 

accomplished just such a goal: Speedway had agreed to step into 

Hess's shoes and assume any and all liabilities that might flow 

from the plaintiff's suit. 
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To cinch the matter, the plaintiff has not shown so much 

as a smidgen of prejudice stemming from the substitution of 

parties. For example, she has not claimed that Speedway is 

judgment-proof; she has not asserted that the swapping of Hess for 

Speedway curtailed her efforts to obtain discovery in any respect; 

and she has not described any way in which either the presentation 

or the substance of her case was adversely affected by the change 

in parties. In the absence of any showing of prejudice, the 

plaintiff's animadversions concerning the district court's grant 

of the substitution motion necessarily fail. See Freener Bus. 

Sch., Inc. v. Speedwriting Publ'g Co., 249 F.2d 609, 612 (1st Cir. 

1957) (per curiam). 

We need go no further. For the reasons elucidated in 

the district court's cogent rescript, as augmented by our comments, 

the judgment below is 

Affirmed.