Spooner v. Todd Transportation Co.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT (DOC. 58)

          CHRISTINA REISS, DISTRICT JUDGE UNITED STATES DISTRICT COURT

         Plaintiffs Mark and Janelle Spooner, a married couple from Keeseville, New York, bring this lawsuit alleging a premises liability theory of negligence and loss of consortium arising out of Mr. Spooner's fall from a loading dock at Defendant Todd Transportation Co.'s warehousing and trucking facility located at 25 Curtis Avenue in Rutland, Vermont (the "Facility"). Mr. Spooner suffered injuries to his cervical spine which left him almost fully paralyzed from his neck down, and for which he requests an award in excess of $75, 000 exclusive of interest and costs.

         On August 27, 2015, Plaintiffs filed their Complaint which Defendant answered on November 4, 2015. On January 9, 2018, the court granted Plaintiffs leave to file an Amended Complaint which they filed the following day. Plaintiffs' Amended Complaint withdraws a theory of liability based upon the wet surface of the loading dock from which Mr. Spooner fell.

         Currently pending before the court is Defendant's motion for summary judgment, filed on July 26, 2017, which is based on the allegations in Plaintiffs' original Complaint. In its motion. Defendant contends that it owed no duty to protect Mr. Spooner from an open and obvious danger as a matter of Vermont law. Defendant also contends that Mr. Spooner's comparative negligence was sufficient to preclude Defendant's liability as a matter of law. On September 15, 2017, Plaintiffs opposed summary judgment, arguing that Defendant had a duty to protect Mr. Spooner because it knew or should have anticipated that Mr. Spooner would fail to protect himself from an open and obvious danger and that Mr. Spooner's own negligence does not eliminate Defendant's liability. The court heard oral argument on November 17, 2017, after which it took the pending motion under advisement.

         Plaintiffs are represented by Mark A. Schneider, Esq., R. Drew Palcsik, Esq., and Todd D. Schlossberg, Esq. Defendant is represented by John T. Pion, Esq., Meredith M. Lasna, Esq., Ralph Suozzo, Esq., Stephen E. Geduldig, Esq., and William A. Staar, Esq.

         I. The Undisputed Facts.^[1]

         In early 2011, Mr. Spooner, a fifty-eight year old man, was employed as a delivery driver for Denton Publications, Inc. ("Denton"), a New York publisher of several regional newspapers. In addition to publishing its own papers, Denton provided printing services to other newspapers, including the Mountain Times. As part of these services, Denton delivered copies of the Mountain Times to Defendant's Facility where local delivery drivers collected them for distribution in Vermont. Defendant is in the business of moving, storage, and transfer of goods.

         The Facility's main building has three loading docks, all built in 1978 prior to Defendant's acquisition of the property. Two of the docks measure approximately eight and half feet wide. The third dock is designed for oversized trailers and is approximately twelve feet wide (the "oversize loading dock"). Defendant's President Douglas Todd acknowledged that the oversize loading dock may be "unusually wide[.]" (Doc. 72-7 at 95.)

         Since Defendant's purchase of the property forty years ago, it has used the Facility at least five days per week and has not altered it in any way except to replace worn-out overhead doors. Douglas Todd could not recall an instance of an employee reporting "a safety concern around the loading docks or warehouse" during Defendant's ownership. (Doc. 58-5 at 18.) Vice President of Operations Richmond Todd observed "Mr. Spooner inside of and along the edge of [the oversize loading dock] bay approximately one dozen times." (Doc. 58-6 at 3, ¶ 7.)

         Mr. Spooner's job at Denton required him to transport pallets of printed papers in an eight foot wide box truck from Denton to the Facility. At the Facility, Richmond Todd typically used a forklift to remove the pallets of newspapers from Mr. Spooner's box truck and load them into a Mountain Times delivery van parked in one of the two remaining bays. Mr. Spooner's practice was to back his truck into the middle of the oversize loading dock, leaving an approximately two foot gap between each side of his eight foot box truck and the edge of the deck of the oversize loading dock.

         Mr. Spooner also usually collected two empty pallets from the Mountain Times driver for return to Denton which reused them. In the event that an empty pallet returned by a Mountain Times driver was damaged, Mr. Spooner's practice was to dispose of it in a discard pile of broken pallets adjacent to the oversize loading dock. In the approximately eleven months of Mr. Spooner's employment at Denton, he disposed of broken pallets at the Facility approximately six times.

         When disposing of broken pallets in the discard pile, Mr. Spooner and Defendant's employees, including Richmond Todd and Warehouse Foreman Joseph LaPoint, occasionally threw them from the oversize loading dock deck. In his previous use of this practice, Mr. Spooner experienced no "difficulty with discarding a broken pallet onto the [discard] pile" and never notified any of Defendant's employees of conditions he thought were "unsafe[.]" (Doc. 58-7 at 17.) Mr. Spooner engaged in this activity with Defendant's knowledge and consent.

         If they chose not to throw broken pallets off the oversize loading dock deck, Defendant's employees would lay discarded pallets on the loading dock deck, walk outside to the lower level of the oversize loading dock bay, and then carry the pallets to the discard pile.

         On September 5, 2012, Mr. Spooner arrived at the Facility with a shipment of Mountain Times newspapers for distribution. A rainstorm prior to Mr. Spooner's arrival had left the metal edge of the loading dock wet. After Richmond Todd unloaded the pallets carrying Mountain Times papers, Mr. Spooner received two pallets for return to Denton: one re-usable and one broken. The broken wooden pallet measured forty inches by forty-eight inches by six inches and weighed between fifty-five and seventy-five pounds. It had sustained damage to two "runners" or "skids[, ]" which were protruding about six inches. (Doc. 58-10 at 9.) Mr. Spooner placed the re-useable pallet in his box truck for return to Denton. He planned to leave the broken pallet in the discard pile adjacent to the oversize loading dock.

         Mr. Spooner acknowledges that he had three choices for disposing of the broken pallet. First, he could have loaded the broken pallet into his box truck, returned it to Denton, and disposed of it there. Second, he could have laid the pallet on the oversize loading dock deck, walked outside the Facility building to the exterior of the oversize loading dock bay fifty-four inches below the deck level, and then carried the broken pallet to the discard pile. Third, he could have thrown the pallet from the oversize loading dock deck to the discard pile below. Mr. Spooner rejected the first option because he was ultimately responsible for disposing of the broken pallet and would have had to bring it home from the Denton warehouse in New York as Denton required him to clean out broken materials from its building. He rejected the second option because he "already had it there on top of the dock, and [had] decided at the time [he] was going to throw it over." (Doc. 58-10 at 15.) He therefore chose the third option.

         Standing the broken pallet on its end, Mr. Spooner positioned his left foot on a platform extending from the end of his box truck and his right foot on the metal edge of the oversize loading dock deck. He then placed his left hand on the front of the pallet and his right hand on the back and threw it through the gap between the side of his box truck and the edge of the oversize loading dock in the direction of the discard pile, a maneuver he had performed successfully in the past. As Mr. Spooner threw the pallet through the gap, the pallet hit him, his right foot lost its grip, and he lost his balance. He fell head first to the pavement fifty-four inches below and sustained significant injuries including almost total paralysis below his neck.

         There were no protective railings or other guards in place on the oversize loading dock deck to prevent a fall. Adding a protective barrier that blocked the two foot gaps between the edge of the oversize loading dock deck and an eight foot wide box truck would not interfere with Defendant's use of the Facility.

         Prior to his injury, Mr. Spooner did not believe he was "doing something hazardous[, ]" (Doc. 72-10 at 26), or that throwing the pallet "was unsafe." Id. at 25. Defendant similarly acknowledged that, at the time of Mr. Spooner's injury, it did not believe he was "doing anything dangerous" and that it regarded Mr. Spooner as a "good conscientious and safe guy[.]" (Doc. 72-6 at 46.) Defendant further conceded that it believed its own employees' practice of throwing pallets from the oversize loading dock deck was safe.

         Defendant did not ask Mr. Spooner to dispose of the broken pallet, direct him to do so in the manner he chose, or force him to perform any activity on the deck of the oversize loading dock.

         Mr. Spooner believes he is approximately thirty percent responsible for his injuries. He alleges that Defendant is seventy percent responsible for them.

         II. The Disputed Facts.

         The parties agree on the facts culminating in Mr. Spooner's injury, but dispute the extent to which Defendant knew the unguarded drop from the oversize loading dock was an open and obvious danger which Defendant should have anticipated Mr. Spooner would not protect himself against. Plaintiffs assert that Defendant should have anticipated Mr. Spooner would fail to protect himself from an unguarded fifty-four inch drop from the oversize loading dock, especially in light of Defendant's placement of the discard pile adjacent to and accessible from the oversize loading dock deck and Mr. Spooner's practice of throwing broken pallets from the ...