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 
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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. 
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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 
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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. 
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 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 & 
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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 
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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. 
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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 
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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 
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 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. 
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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. 
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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.