Published on: June 14, 2018

Last week, the Massachusetts Appeals Court affirmed a $20 million judgment against Cumberland Farms in connection with a 2010 car crash that involved an elderly man who apparently suffered a stroke, sped through an intersection and crashed into the front of a Cumberland Farms convenience store and gas station located in Chicopee, killing a 43-year old woman who was shopping inside. Although it pertains to an accident at a commercial property open to the general public, the court’s decision in this case can provide an important warning to condominium associations and HOAs with regard to the common areas and facilities for which they are responsible.

The case, Albert R. Dubuques, Jr., executor, v. Cumberland Farms, Inc., was commenced in 2012 and went to trial in 2017.  At trial, the plaintiff showed that although the Chicopee store had never experienced a “car strike” (defined as an incident involving a motor vehicle impacting on some portion of the building in which the Cumberland Farms’ store was located) prior to the fatal accident, between 1990 and 2010, there had been literally hundreds of incidents involving car strikes at convenience stores owned and operated by Cumberland Farms in other locations. During this period, Cumberland Farms incurred at least $1.6 million in property damages and paid in excess of $2 million in personal injury claims resulting from car strikes. The plaintiff argued that, under the circumstances, Cumberland Farms’ failure to take reasonable measures to prevent damage to property and injury to customers at its convenience stores constituted gross negligence. Cumberland Farms argued that they had not been negligent by not installing any protective measures in this location because the Chicopee store had never before experienced a “car strike”, and thus, it argued, the accident that killed the victim could not have been anticipated. The jury, however, agreed with the plaintiff and determined that Cumberland Farms had been grossly negligent by failing to install bollards or other protective barriers at the entrance of the Chicopee store to protect against accidents of the type involved in the lawsuit.  The jury awarded the plaintiff approximately $32 million, an amount that the trial judge subsequently reduced to $20 million. Cumberland Farms appealed.

On appeal, Cumberland Farms offered several arguments in support of its position that it was not liable to the plaintiff. First, Cumberland Farms contended that it had been unduly prejudiced by the trial court’s admittance of evidence of the hundreds of prior car strikes that had occurred at other Cumberland Farms’ locations. The Appeals Court found instead that the admission of such evidence was properly in the trial judge’s discretion since the prior car strikes were substantially similar in nature to the car crash at issue in the lawsuit involving the Chicopee convenience store. Second, Cumberland Farms argued that the accident at issue was “random and unforeseeable” and therefore not a foreseeable risk (a necessary element of the plaintiff’s case) because the driver who killed the victim “unintentionally encroached upon the Chicopee store property from the adjacent public ways at ‘highway-like’ speed.”  Cumberland Farms argued that it only had an obligation to guard against those risks that it knew or reasonably should have known about, not the car crash at issue in the lawsuit. The Appeals Court rejected this argument, finding that because of the nature of the defendant’s business (a combined convenience store/gas station) presented a high level of risk from motor vehicle traffic and because it had prior experience with car strikes, the risk of a high-speed collision between a motor vehicle, Cumberland Farms had an obligation to take reasonable measures to protect against the type of risks involved in this case. The Appeals Court noted that Cumberland Farms’ own director of risk management had previously advocated for the implementation of a system wherein bollards would be installed to protect people and property from car strikes of the type at issue in this case. The Appeals Court subsequently issued a 39-page decision affirming the $20 million judgment against Cumberland Farms.

While condominium associations and HOAs do not operate retail establishments open to the general public that have a heightened risk of “car strikes”, the results of the Albert R. Dubuques, Jr., executor, v. Cumberland Farms, Inc. case can, however, be instructive. Such entities are responsible for repairing and maintaining various common area infrastructure like roadways, sidewalks, staircases, pools, tennis courts, parking lots and other common facilities all of which could potentially pose a risk of property damage and personal injury. Associations should treat complaints or suggestions from owners or other visitors to the property concerning the safety of any aspect of the common areas seriously and should investigate whether reasonable measures to protect against foreseeable risks associated with such common area infrastructure are called for – before an accident occurs.  Although a condominium association or an HOA, like Cumberland Farms, is “not a guarantor of the safety of persons lawfully on [their] premises”, they are obligated to guard against reasonable foreseeable risks of harm, i.e., those risks that they know about or reasonably should know about and against which they should employ reasonable preventative measures. Regular inspection, maintenance and repair of all common areas and facilities can go a long way to minimizing the potential risks associated with such facilities and, therefore, the potential that a condominium association or HOA could be found liable for property damage and/or personal injury.

For a copy of the decision [click here].

For any questions regarding this article, please contact Haley Byron ( or John Shaffer (