Lichman v. Nat'l R.R. Passenger Corp.

268 F.Supp.3d 334

Galina LICHMAN and Walter Mirzoyan, Plaintiffs,

v.NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak, Defendant, Third–Party Plaintiff,

v.Oakwells, LLC, and Oakwells Commuter Rail LLC, Third–Party Defendants.

CA No: 15–456–M–PAS

United States District Court, D. Rhode Island.

Signed August 7, 2017

Ronald J. Resmini, Andrew O. Resmini, Law Offices of Ronald J. Resmini, Ltd., Providence, RI, for Plaintiffs.

Benjamin R. Davis, Paul E. Dwyer, Jr., Locke Lord, LLP, Providence, RI, for Defendant, Third–Party Plaintiff.

Mark W. Shaughnessy, Boyle, Morrissey & Campo, PC, Boston, MA, Clint D. Watts, Boyle, Shaughnessy and Campo, P.C., Providence, RI, for Third–Party Defendants.

MEMORANDUM AND ORDER

JOHN J. MCCONNELL, JR., United States District Judge.

This case can best be summed up as a slip-and-fall accident of a garden variety. As told by Plaintiff Galina Lichman, she sustained injuries after falling on a wet floor in the Providence train station ("Station"), which is owned and maintained by Defendant National Railroad Passenger Corporation, d/b/a Amtrak ("Amtrak"). Ms. Lichman filed suit against Amtrak for her injuries, and Amtrak, in turn, brought a Third–Party Complaint against Ms. Lichman's employer, Oakwells, LLC, and Oakwells Commuter Rail, LLC (collectively "Oakwells"), who agreed to indemnify and defend Amtrak under certain circumstances pursuant to their lease agreement ("Lease").

Amtrak has moved for summary judgement on Ms. Lichman's claims (ECF No. 22), arguing that Amtrak had no notice of the floor's condition and that any danger that might have been present was open and obvious to Ms. Lichman. Like Amtrak, Oakwells has moved for summary judgment (ECF No. 26). In support of Oakwells' Motion, it claims: (1) the Lease does not require indemnification and defense of negligence actions, and (2) Oakwells has no duty to maintain the common area where Ms. Lichman fell.

BACKGROUND

Oakwells is a commercial tenant leasing a newsstand/retail store in the Station. The store is situated such that Oakwells patrons and employees must travel through the common areas of the Station to access the store.

Under the Lease, Amtrak and Oakwells maintain a landlord-tenant relationship. Paragraph 12 of the Lease creates a duty for Oakwells to defend and indemnify Amtrak from Oakwells employees' claims, but this duty does not apply to the negligence or willful misconduct of Amtrak. Specifically, the indemnity provision¹ states:

Tenant shall indemnify and hold harmless the Indemnified Parties, as defined below, and defend the Indemnified Parties if requested of Tenant, from and against any and all losses, damage, claims, demands, actions or causes of action, suits at law or in equity, judgments, liability or expenses, including death, to any person whatsoever, including loss or destruction or loss of use thereof, arising out of, directly or indirectly, any accident or occurrence, however caused, in or as a result of the exercise of the Lease granted herein or the use of Providence Station or any part thereof by Tenant, its officers, employees, agents, servants and invitees, provided that the foregoing release shall not apply to the negligence or willful misconduct of the Indemnified Parties.

Ms. Lichman worked as a clerk at Oakwells' news shop. She was responsible for opening the shop and bringing newspapers inside from a bin outside the Station. On January 11, 2014, in performing her job duties, she arrived at the Station at about 6:15 a.m. and opened the shop. After opening up, she entered the store for a few minutes to prepare for business. Due to the icy and wet conditions outside the Station, Ms. Lichman wiped her feet on the shop's carpeted floor. At approximately 6:28 a.m., she walked through the common area of the Station, passed two sets of doors, and exited the Station to get the day's newspapers from a bin. Once outside, she retrieved a single bundle of newspaper, weighing roughly eight to ten pounds. Now, with the newspapers in hand, she reversed direction and trudged back through the sliding doors. On her way back to the news shop, she crossed the same common area, but this time, she slipped, lost her balance, and fell on the floor near a trash can located on the side of the Oakwells store. As she painfully sat on the ground waiting for help, she realized that her clothes were soaked in water.

Ms. Lichman brought the instant action against Amtrak for its failure to keep the premises safe on the day of the incident. As a result of Ms. Lichman's suit, Amtrak brought third-party claims against Oakwells, asserting that Oakwells breached its contractual duty to defend and indemnify Amtrak and that Oakwells owed a duty to maintain the premises upon which Ms. Lichman fell.

STANDARD OF REVIEW

A motion for summary judgment should be granted if the pleadings, discovery, disclosure materials on file, and any affidavits "show[ ] that 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). A " ‘genuine’ issue is one that could be resolved in favor of either party, and a ‘material fact’ is one that has the potential of affecting the outcome of the case." Calero–Cerezo v. U.S. Dep't of Justice , 355 F.3d 6, 19 (1st Cir. 2004) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ).

The moving party bears the burden of establishing that no genuine issues of material fact exist, Flovac, Inc. v. Airvac, Inc. , 817 F.3d 849, 853 (1st Cir. 2016). Once the moving party has made the requisite showing, the non-moving party may not merely rely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in the rule—set out specific facts showing a genuine issue for trial. Murray v. Warren Pumps, LLC , 821 F.3d 77, 83 (1st Cir. 2016). In applying this standard, the Court views the record in the light most favorable to the non-moving party, accepting all reasonable inferences favoring that party. Audette v. Town of Plymouth , 858 F.3d 13, 20 (1st Cir. 2017).

DISCUSSION

The present motions for summary judgment implicate the rule of two, unfortunately missing the rule of three. The parties have introduced two motions for summary judgment, each on two bases. For its part, Amtrak moves for summary judgment on Ms. Lichman's claims because: (1) Amtrak had neither actual nor constructive notice of the floor's condition, and (2) the condition was open and obvious to Ms. Lichman. Oakwells, in its Motion, seeks to extricate itself from the suit because: (1) the Lease's indemnity and defense provision does not encompass negligence actions against Amtrak, and (2) Oakwells had no duty of care over common areas under Amtrak's control. The Court begins with Amtrak's Motion.

I. Amtrak's Motion for Summary Judgement

A. Notice

Amtrak starts by casting doubt on Ms. Lichman's ability to generate a triable issue as to Amtrak's notice of the wet floor. Under Rhode Island law, landowners have a duty to "protect against the risks of a dangerous condition existing on the premises." Konar v. PFL Life Ins. Co. , 840 A.2d 1115, 1118 (R.I. 2004). But to be held liable, the landowner must "know[ ] of, or by exercise of reasonable care would have discovered, the dangerous condition." Id. (quoting Kurczy v. St. Joseph Veterans Ass'n, Inc. , 820 A.2d 929, 935 (R.I. 2003) ).

As correctly pointed out by Amtrak, Ms. Lichman has not pointed to any direct evidence that Amtrak had actual knowledge of the water accumulation on the floor. Ms. Lichman, prior to her fall, did not inform an Amtrak employee of the water accumulation, nor is there any other evidence that Amtrak actually knew of the flooring condition. As for constructive notice, Amtrak asserts that Ms. Lichman has failed to present evidence of the length of time the water was present. Indeed, Ms. Lichman herself did not even know of the condition prior to her fall, as limned below in the Open & Obvious sub-section.

Ms. Lichman counters by directing the Court's attention to a number of pieces of circumstantial evidence, which she contends generates a genuine issue as to notice. This circumstantial evidence includes: (1) video evidence of a wet mat leading into the Station, (2) records of at least two similar injuries that occurred due to wet flooring, (3) Ms. Lichman's testimony of prior falls at the Station, (4) Ms. Lichman's testimony that "every morning the janitor" mops "the floor" but on the day of her fall she did not see him mopping the floor, and (5) Ms. Lichman's testimony that she saw the janitor near the luggage room when she fell.

"Slip and fall cases are difficult to prove," and "these cases are [often] established through circumstantial evidence from which a jury can infer the existence or nonexistence of negligence on the part of a defendant." Mead v. Papa Razzi Rest. , 840 A.2d 1103, 1108 (R.I. 2004) (quoting Barone v. Christmas Tree Shop , 767 A.2d 66, 71 (R.I. 2001) (Goldberg, J., dissenting)). Though in resolving this dispute, the Court does not need to pull out its tape measure and calculator, measure each piece of circumstantial evidence, and determine if the sum of their parts arguably equates to constructive notice. In fact, venturing beyond Ms. Lichman's fifth point would be pointless. Because when an employee is in close proximity to the accident, this fact alone suffices to create a genuine issue of material fact regarding notice. DeRobbio v. Stop & Shop Supermarket , 756 A.2d 209, 212 (R.I. 2000) ("[H]ere an employee of Stop & Shop was working in close proximity to the area of plaintiff's fall and was actually present when she fell. Therefore, reasonable minds could disagree on the question of whether defendant was on notice of the dangerous condition.").

In short, a genuine issue of material fact exists as to notice, so we need go no further on this issue.

B. Open & Obvious

Turning away from Amtrak's knowledge, the Court...