Caroline Wilson v. Pauline Copen; Valley Forge Insurance Company

United States Court of Appeals
For the First Circuit
No. 00-1639
CAROLINE WILSON,
Plaintiff, Appellant,
v.
PAULINE COPEN; VALLEY FORGE INSURANCE COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Stahl, Lynch, and Lipez,
Circuit Judges.
Lee H. Kozol, with whom David A. Rich and Friedman &
Atherton LLP, were on brief, for appellant.
James R. Loughman, with whom Donovan & O’Connor, LLP, was
on brief, for appellee Copen.
Richard W. Jensen, with whom Morrison, Mahoney & Miller,
LLP, was on brief, for appellee Valley Forge Insurance Company.
March 30, 2001

-- 1 of 13 --

-- 2 of 13 --

-3-
STAHL, Circuit Judge. In the early morning hours of
August 22, 1996, plaintiff-appellant Caroline Wilson injured
herself in a fall down a darkened flight of steps in the home of
defendant-appellee Pauline Copen. Wilson subsequently brought
this diversity action against Copen and Copen's liability
insurer, defendant-appellee Valley Forge Insurance Co. ("Valley
Forge"). The complaint alleged that Copen was negligent in
failing to warn Wilson of unusual conditions – a narrow landing
at the top of the stairs and a hidden light switch – that caused
her to fall in the darkness. The complaint further alleged that
Valley Forge engaged in unfair claim settlement practices when
Wilson sought compensation for her injuries. See Mass Gen.
Laws. chs. 93A & 176D, § 3. Following the close of discovery,
Copen moved for summary judgment, which the district court
granted on alternative grounds: that Copen owed Wilson no duty
to warn, and that Wilson was more than 50% comparatively
negligent. See Mass. Gen. Laws ch. 231, § 85. Because Copen
was not liable, the court also awarded judgment to Valley Forge.
Wilson appeals, contending that the court erred in concluding
that no reasonable jury could find Copen liable. We agree and
therefore vacate and remand.
The relevant facts are undisputed. In the early
evening of August 21, 1996, Wilson, who was then 50 years old,

-- 3 of 13 --

-4-
arrived at Copen's Stockbridge, Massachusetts, condominium with
the intention of staying overnight. Wilson had agreed to stay
with Copen at the request of Copen's daughter, a friend of
Wilson's, who did not want her 82-year-old mother to be alone
during the night. Wilson had never before spent the night with
Copen. Copen had owned the condominium, which she used as a
summer home, for a little more than eight years.
Upon her arrival and at Copen’s urging, Wilson went
upstairs and placed her belongings in a guest bedroom which was
directly across from the top of the stairs. There was no need
to use a light at that time because it was still light outside.
The door to the bedroom opened outward to a small landing, which
a person exiting the room would reach via a short passageway
flanked on the left by an enclosed area and on the right by a
closet. To reach the upstairs bathroom from the bedroom, one
would exit the room, proceed to the end of the passageway, and
turn right. The bedroom’s threshold was approximately six feet
from the top of the stairs, but the imaginary line marking the
end of the passageway (as one exits the room) was only about
three-and-one-half feet from the top of the stairs.
After depositing her effects in the bedroom, Wilson
went downstairs and had dinner with Copen. Following dinner,
Wilson washed the dishes and sat with Copen until approximately

-- 4 of 13 --

-5-
8:30 p.m., when Copen announced that she would be retiring.
Wilson then went upstairs, got in bed, turned on a small lamp
next to her bed, and began reading. The lamp was the only light
in the room, and could only be turned on manually if it
previously had been turned off manually. A light in the ceiling
over the upstairs landing also was on at this time. At about
10:30 p.m., Wilson heard Copen leave her bedroom. From her bed,
Wilson bid Copen good night. Copen responded in kind and, with
Wilson’s knowledge, turned off the light over the upstairs
landing by means of a switch located at the bottom of the
stairs. Sometime thereafter, Wilson manually turned off the
lamp beside her bed and went to sleep.
At about 1:00 a.m. on August 22, 1996, Wilson awoke
with a need to go to the bathroom. The upstairs of the
condominium was completely dark. Wilson, who was half-awake,
left her bed and, apparently not wanting to be jarred awake by
the direct light of the lamp next to her bed, chose not to turn
on the lamp. Instead, she made her way towards the upstairs
landing with the intention of locating and then turning on the
overhead (and thus more indirect) landing light. Wilson knew
that the bathroom was located to the right of the passageway
from the bedroom, but did not know the location of the switch
for the light over the landing. In fact, the switch was on the

-- 5 of 13 --

-6-
wall of the enclosed area flanking the passageway on the left,
and was hidden behind the bedroom’s door when the door was left
in the open position.
The architect’s electrical plan for the condominium
called for the switch to be on the right, where it would have
been readily accessible to one exiting the room, but the
electrical layout was for some reason changed when the
condominium was built. Locating the switch behind the door is
contrary to standard practices in the construction and building
industry – the National Electrical Code states that "[a]ll
switches . . . shall be located that they may be operated from
a readily accessible place" – and (in the uncontradicted
opinions of Wilson's experts) created a dangerous situation for
guests exiting the bedroom at night. Copen, however, did not go
upstairs much, and claimed not to have knowledge of the switch's
unusual location. As a result, she never warned Wilson of the
potentially dangerous situation. Nor did she take steps – e.g.,
leaving the landing light on – to ameliorate it.
Wilson described her accident in deposition testimony.
Having reached the doorway, she crossed the threshold and
extended her left hand in an effort to locate the landing light
switch. Wilson presumed that the switch would be on her left
because "the opening for the bathroom was on the right." In

-- 6 of 13 --

-7-
reaching for the switch, Wilson hit the open door, which bounced
toward her. Wilson then pivoted on her right foot "to turn and
see if there was a light switch on the right hand side, and when
I pivoted, I fell down the stairs." Wilson suffered serious
injuries as a result of her fall.
On March 13, 1998, Wilson commenced this action against
Copen and Valley Forge on the theories described in the first
paragraph of this opinion. In January 1999, Valley Forge sought
and obtained a severance and a stay of Wilson's unfair claim
settlement practices cause of action, successfully arguing that
the action would not lie if Copen were not held liable in
negligence. Subsequently, Copen moved for summary judgment on
Wilson's negligence claim, arguing that, as a matter of law, the
narrowness of the landing and the darkness were open and obvious
dangers, and that Copen had no duty to warn Wilson about the
location of the upstairs landing light switch because Wilson's
decision to forgo turning on the lamp beside her bed and to
grope in the dark for the switch was not foreseeable.
The district court orally granted the motion. As an
initial matter, the court concluded that the absence of disputed
facts obliged it to decide whether Copen owed Wilson a duty to
warn. In the court's view, putting this question to a jury
would be tantamount to asking the jury to create a legal

-- 7 of 13 --

-8-
standard, which is not its task. The court then held that Copen
owed Wilson no duty to warn because (1) Copen knew that Wilson
was aware of the light beside her bed; (2) the narrowness of the
stairway landing was an open and obvious danger to Wilson, who
passed over it at least twice prior to her accident; (3) it was
not foreseeable that Wilson would keep moving forward in the
dark groping for the upstairs landing light switch (rather than
returning to her bed and turning on the lamp); and (4) Copen had
no actual knowledge of the switch's location. The court also
held, in the alternative (but for the same reasons), that Wilson
was more than 50% comparatively negligent as a matter of law.
Finally, the court summarily awarded Valley Forge judgment on
Wilson's unfair claims settlement practices cause of action
because Copen was not liable as a matter of law.
In making its rulings, the district court stated that
it regarded Bohenko v. Grzyb, 21 Mass. App. Ct. 961 (1986)
(rescript opinion), as instructive. Bohenko reversed a verdict
in favor of a plaintiff who, with the permission and
foreknowledge of the homeowner defendant, let herself into his
unilluminated house at 1:00 a.m., entered a darkened hallway,
groped in the dark and found what she thought to be the kitchen
door but was in fact the basement door, opened the door and
stepped through, and injured herself in a fall down the basement

-- 8 of 13 --

1Massachusetts law well recognizes that a homeowner has a
common law duty of care to invitees, which includes the duty to
warn lawful visitors of any unreasonably dangerous conditions of
-9-
steps. See id. at 962. The negligence theory posited in that
case was that the defendant acted unreasonably in failing to
keep the rear entrance and hallway of his house lighted. See
id. The jury accepted this theory, but the Massachusetts
Appeals Court rejected it because, in its view, the defendant
could not have foreseen the plaintiff's conduct as a matter of
law. See id. Although recognizing that the facts of Bohenko
are "not on all fours" with the facts here, the court
nonetheless thought that "the foreseeability of [the plaintiff
in Bohenko] showing up in the area that was darkened was . . .
the same foreseeability [as] Ms. Wilson's getting up in the
middle of the night."
On appeal, Wilson contends that the district court
committed legal error in concluding that the duty-to-warn and
contributory negligence issues were unfit for jury resolution
because the relevant facts are undisputed. We agree. The court
conceptualized resolution of Copen’s summary judgment motion as
turning on a legal question – whether the established facts gave
rise to a duty to warn – that it, and not the jury, should
decide. But we think that this case is less about whether Copen
owed Wilson a legal duty (she clearly did1) than it is about

-- 9 of 13 --

which the homeowner should be aware. E.g. O’Sullivan v. Shaw,
431 Mass. 201, 204 (2000). The homeowner is relieved of the
duty to warn of such conditions if they are “open and obvious,”
and sometimes it is appropriate for a trial judge to enter
summary judgment where no reasonable jury would conclude
otherwise. Id. at 207-09. But that is not this case.
2The law regards this finding as one of “ultimate fact,” see
11 Moore's Federal Practice § 56.11[5][b] (Matthew Bender 3d
ed.), resolution of which usually is left to the jury, see
Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983); see also
Noble v. Goodyear Tire and Rubber Co., Inc., 34 Mass. App. Ct.
397, 402 n.2 (1993) ("application of the reasonable person
standard is uniquely within the competence of the jury")
(citation and internal quotation marks omitted). Crucially,
this is so even when the relevant facts are stipulated or
undisputed. See 11 Moore's Federal Practice § 56.11[5][b] ("Much
jury activity is devoted not to determining physical facts but
to construing them. For example, questions of assumption of the
risk or intent are usually classified as factual matters, to be
determined by the jury. So, too, is the question of whether a
given party's stipulated or uncontested conduct constitutes
negligence or contributory negligence.").
-10-
whether a jury rationally could find that the failure to warn
identified in the complaint constituted a breach of her duty.2
We believe that a jury could so find.
Succinctly stated, we think a jury rationally could
find that Copen breached a duty to warn by reasoning as follows.
When Copen turned off the light and plunged the upstairs landing
into darkness, she should have foreseen that Wilson might awaken
with a need to use the bathroom during the night. That being
the case, Copen also should have foreseen that Wilson might
groggily make her way toward the landing without first trying to
locate the manual switch that would illuminate the lamp next to

-- 10 of 13 --

-11-
her bed and expose her to more direct light (thus fully wakening
her); exit the bedroom in the dark and proceed to the landing
with the intention of locating and turning on a landing light
she knew to exist; be unable to locate the light switch because
of its unconventional location; move about on the landing in
search of the light switch instead of making a second trip in
the dark back to the bedside lamp; and lose her bearings and
tumble down the stairs. We also think that a jury rationally
could find that, actual knowledge aside, Copen should be charged
with knowledge of the unusual configuration at the top of her
stairs, having occupied the condominium for eight summers.
Finally, we think that a jury viewing the case in this way
rationally could conclude that Wilson was less than 50%
comparatively negligent in acting as she did. Cf. Hubbard v.
Palmer Russell Co., 343 Mass. 414, 416-17 (1961) (holding that
a plaintiff’s prior knowledge of a darkened stairwell down which
she fell did not constitute contributory negligence as a matter
of law). This view of the evidence is not the only one
plausible; a jury would be well within its rights to reason as
the district court did and return a verdict for Copen. But we
simply do not believe that, on the evidence, a defendant's
verdict is inevitable if the jury acts rationally.

-- 11 of 13 --

-12-
Bohenko, see supra at 6-7, does not shake this belief.
It is true that, as here, the plaintiff in Bohenko injured
herself in a fall down darkened stairs in the home of an
acquaintance. See 21 Mass. App. Ct. at 962. But there is no
mention in Bohenko of any attempt by the plaintiff to turn on a
light. See id. Moreover, and more importantly, "[t]here was no
evidence that the [basement] stairs were defective or that there
was anything about the condition of the premises that was
unusual." Id. In our view, these two facts suffice to
distinguish the present case and make it worthy of submission to
a jury.
Two other points merit brief mention. First, we reject
out of hand Valley Forge's alternative argument that Wilson's
deposition testimony, which can be taken to suggest that Wilson
fell before reaching the area to the right of the bedroom's
door, conclusively establishes that she would have fallen down
the stairs even if the light switch had been located on the
right, as the architect had planned. Wilson's complaint does
not claim that the light switch was negligently located; rather,
she claims that Copen acted negligently in failing to warn her
about the dangers of venturing on to the landing in the dark
given the switch's location and the narrowness of the landing.
Second, there is some dispute as to whether Wilson has

-- 12 of 13 --

-13-
sufficiently pleaded, as an alternative liability theory, that
Copen acted negligently in turning off the landing light. We
leave resolution of that dispute for the district court on
remand.
Vacated and remanded.

-- 13 of 13 --