Plaintiff filed suit against Defendant under the Jones Act and general maritime law after her husband fell and drowned after slipping from an obviously hazardous place on a pier while attempting to return to the commercial fishing boat on which he was working. The district court granted summary judgment in favor of Defendant and Plaintiff appealed.

Plaintiff worked as a commercial fisherman. The facility at which the fishing vessel was docked was often locked, causing crewmembers and other employees to enter the facility through an obvious gap in a surrounding fence. After entering through the gap, crewmembers could either walk a lengthy route around the parking lot and building to access the boat, or walk along the waterfront retaining wall and along the pier to access the stern of the boat. Walking along the wall and pier was significantly shorter and more direct, and also more hazardous because snow and ice were not removed from the pier.

Plaintiff maintained that Defendant violated its duty to remedy the hazard of snow and ice on the pier, particularly on the retaining wall from which the deceased fell. The question of whether Defendant owed a duty of care is an issue of law that may be settled on summary judgment if undisputed facts show that the risks posed by the defendant’s actions were not foreseeable. Landowners have a duty to remove snow and ice accumulations even though those accumulations present an open and obvious hazard to visitors. That the hazard is open and obvious does not negate the landowner’s duty to remedy the hazard. A landowner can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. The duty to remedy the danger remains when it is foreseeable that visitors will choose to encounter the hazard despite the open and obvious risks it poses.

Here, the Court of Appeals found that Defendant was not entitled to summary judgment because too many disputed facts existed and there were too many disputed issues. The Court found that the record failed to establish that Defendant did not have any reason to anticipate crew members would attempt to cross the icy pier in this manner. A finder of fact could infer that the landowners knew the gap in the fence existed and knew it was used. The Court held that issue of foreseeability should be submitted to a finder of fact and that summary judgment was not proper.

Cracchiolo v. Eastern Fisheries, Inc., — F.3d —-, 2014 WL 144519 (1st Cir. 2014).