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[2] Plaintiff makes much of the fact that the DOC is not merely a premises owner, but a custodian of prison inmates to whom it is alleged to owe a higher duty of care. Although the SJC has not, to date, declared this as a matter of law, the suggested distinction is of no moment. It is well settled that neither public landowners nor state prisons are guarantors or insurers of inmate safety. See Mounsey v. Ellard. 363 Mass. 693, 709 (1993); Williams v. O'Brien. 78 Mass. App. Ct. 169, 176 (2010). Both owe persons on their property a duty to"protect them against unreasonable risk[s] of physical harm," Restatement (Second) of Torts§ 314A, and to make safe or warn of conditions on their property that they "know or ... should realize ... involve an unreasonable risk of harm." Sarkisian v. Concept Restaurants, Inc.• 471 Mass. 679, 682 (2015). See Williams, 78 Mass. App. Ct. at 176 (prison officials owe duty to protect inmates "against unreasonable harm," the risk of which is known or reasonably should have been known).

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(either on the exterior ground or in the underground water piping) to give them constructive notice of an unreasonable danger that a sinkhole might form. The most that Plaintiff has cited to the Court is testimony from prison administrators acknowledging that the DOC was aware for some time that there was excess heat emanating from the basement steam pipes underneath the stairwell that leads to the H Building gym. But there is no evidence of any kind- lay or expert - drawing a connection between excess heat inside of a facility and dangerous sinkholes external to it. No evidence suggests that excessive heat from underground steam pipes causes soil erosion in surrounding areas (or that it .in fact did so in this case, see infra). In point of fact, this Court has previously taken judicial notice of the fact that sinkholes are typically produced by "an accumulation of rainwater above an underground cavity or loose soil, causing the earth to compact and sink under the weight." See LaSelva v. City of Boston, No. 1984CV01583-C,2021

WL 3621896, at *3 (Mass. Super. Ct. Aug. 15, 2021) (Gordon, J.), citing Jae-Young Kwak et al., Experimental Assessment of the Relationship Between Rainfall Intensity and Sinkholes Caused by Damaged Sewer Pipes, 20 Nat. Hazards Earth Syst Sci. 3343 (2020).

            Even if there were a causal connection between internal building heat and exterior soil erosion producing sinkholes as a matter of science, and Plaintiff has cited no expert evidence to this effect, a viable negligence claim in this case would still require proof that the DOC was fairly on notice of same. See Sheehan, 448 Mass. at 784 (defendant must have "reasonable opportunity to discover and correct any hazards"). That administrators at MCI-Concord were aware that H Building was overheated cannot, without more, impute to them an awareness or constructive awareness of esoteric science suggesting the likely presence of sinkholes outside this facility posing an unreasonable risk of harm to inmates. See Toubiana v. Priestly. 402 Mass. 84, 88·89 (1988) (landowner not held to standard of expert or most prudent person, but rather to

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that of ordinarily prudent person with the information landowner in fact possessed before' the incident).

            Finally, even if there were a demonstrated scientific connection between building heat and exterior sinkholes (and there is not), and even if there were evidence that the DOC defendants were aware of this general phenomenon, the fact remains that the summary judgment record contains no proof that excess heat at H Building disregarded by the DOC in fact caused the sinkhole into which Diaz fell on this occasion. As the Court recognized in LaSelva, "[a]ny number of environmental factors ... entirely unrelated to human negligence may contribute to soil erosion or subsiding at an outdoor [site], including the site's particular soil type and clay content, the amount of area rainfall and flooding, and groundwater levels at the [site] . . . " LaSelva, supra at *3, citing Haibat Ali & Jae-ho Choi, Risk Prediction of Sinkhole occurrence for Different Subsurface Soil Profiles Due to Leakages from Underground Sewer and Water Pipelines, 12 Sustainability 310 (2020). Plaintiffs summary assertion that negligence on the part of the DOC in failing to address excess heat inside of H Building more likely than not caused the sinkhole into which Diaz fell, in addition to lacking factual support of its own from an expert, fails to account for any of these alternate causation-defeating explanations of what occurred. See Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993) ("While a plaintiff need not show the exact cause of the accident or exclude all other possible causes, he must show that there is a greater probability than not that the [injuries] resulted from the defendant's negligence.".)[3]

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[3] None of this is groundbreaking. At hearing, Plaintiff's counsel argued, for the first time, that a defendant aware of excess heating emanating from underground pipes in a building may (without more) be deemed negligent for failing to correct for above-ground sinkholes caused by same (such causation a matter of"common knowledge") under the doctrine of res ipsa loquitur. The Court does not agree that the scientific questions raised in this case are matters of common knowledge, and thus rejects the suggestion that a lay jury could reasonably find the DOC negligent for failing to correct for the non-obvious sinkhole outside of H Building merely on the basis that it knew about the subterranean steam heat. The doctrine of res ipsa loquitur has no application in these circumstances. See Enrich 416 Mass. at 88 ("This doctrine permits a trier of fact to draw an inference of negligence in the absence of a finding of a

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            In the final analysis, the record in this case contains no probative evidence from which a reasonable inference can be drawn that negligence on the part of the DOC and its staff at MCI- Concord more likely than not caused Diaz's injuries. Absent evidence of negligence and causation, Plaintiff's claims fail as a matter of law and are properly dismissed. See Kennedy v. Abramson, 100 Mass. App. Ct. 775, 780 (2022), quoting Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983) (to prevail on a negligence claim, evidence must establish that ''there was a greater likelihood or probability that the harm complained of was due to causes for which the defendant was responsible than from any other cause").[4]

CONCLUSION AND ORDER

            For all the foregoing reasons, the Defendants' Motion for Summary Judgment shall be, and hereby is, ALLOWED. ·

SO ORDERED.

/s/Robert B. Gordon

Justice of the Superior Court

February 5, 2025

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specific cause of the occurrence when an accident is of the kind that does not ordinarily happen unless the defendant was negligent in some respect and other responsible causes ... are sufficiently eliminated by the evidence".).

[4] These evidentiary deficits are, of course, equally fatal to Plaintiff's Section 1983 claim. An Eighth Amendment violation requires far more than simple negligence, vjz.,."deliberate indifference" to known and substantial risk of "serious harm,'' to sustain a cause of action. See v Commissioner of Corr., 484 Mass. 698, 718-20 (2020). The evidence in the present case does not remotely approach this standard of civil culpability.