Aceto v. Legg

1990 Mass. App. Div. 191, 1990 Mass. App. Div. LEXIS 97
CourtMassachusetts District Court, Appellate Division
DecidedNovember 8, 1990
StatusPublished
Cited by2 cases

This text of 1990 Mass. App. Div. 191 (Aceto v. Legg) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aceto v. Legg, 1990 Mass. App. Div. 191, 1990 Mass. App. Div. LEXIS 97 (Mass. Ct. App. 1990).

Opinion

Flatley, J.

This is an action in tort for negligence in which the plaintiff seeks damages for personal injuries she sustained in a fall in the defendant’s home. Judgment was entered for the plaintiff in the amount of $41,887.00.

[192]*192The defendant has prosecuted this appeal on a charge of error in the trial court’s denial of four of his requests for rulings of law. The sole issue presented for review by the court’s rulings is whether the evidence adduced at trial was sufficient to warrant the court’s finding against the defendant for the negligent maintenance of his home.

The reported evidence may be summarized as follows: Alan Legg (“Defendant”) and his ex-wife, Janet Legg, are the owners of a home at 7 Cleveland Street, Medford, Massachusetts. At the time of the accident in question, the defendant lived in the house with his adult son, Joseph, and his two adult daughters.

The house is a two-story dwelling, with a single interior stairway leading to the second floor hallway. Immediately opposite the top of the stairs on the second floor is the door to the bathroom. Both the second floor hallway and the stairway are covered with a thick wall to wall carpet

At approximately 7:15 AM. on October 1,1987, Mary Aceto (“Plaintiff”) arrived at the defendant’s home to visit his son, Joseph. No other person was home at the time, the defendant having left in the middle of the night to drive his canteen truck. The plaintiff accompanied Joseph to the second floor. As she was proceeding from his bedroom to return downstairs, she slid, allegedly on the wall to wall carpet between the bathroom and the top of the stairwell, and fell down the stairs.

No question has been raised on this appeal as to the nature of the plaintiffs injuries, or the costs incurred for the treatment of the same.

The only evidence introduced at trial on the issue of liability was the testimony of the plaintiff and of the defendant’s son, Joseph, both of whom were called as witnesses by the plaintiff. Joseph stated that he had taken a shower approximately one hour before the plaintiff had arrived, had wrapped a towel around himself and gone into his bedroom, and that the carpet in the hallway was wet as the result of his dripping. He also testified that towels were provided in the bathroom and that the hallway carpet had been wet and slippery on other occasions from dripping persons leaving the bathroom after showers, but that he knew of no other person who had ever slipped when the carpet was wet

The plaintiff testified only that the weather was clear and dry on the morning in question; that she was wearing low-heeled pumps; that she slid at the top of the stairs and fell; that she had noticed nothing about the carpeting that day prior to her fall; that she had detected wetness in the area at the top of the stairs on previous occasions when she had her shoes off, and that she had seen towels, but no bath mat or rug, in the bathroom on previous occasions.

No other evidence was introduced.

The trial court’s findings of fact and rulings of law included the following:

The evidence at trial showed that the carpet at the top of the stairs was wet at the-time of the plaintiff’s fall and that the carpet had become wet and slippery in the past as a result of the defendant’s family taking showers. There was no evidence of a bathmat or other carpet in the bathroom to absorb the water. The evidence is clear that the defendant Alan Legg either knew or should have known that the carpet had been wet and slippery in the past.
Defendant Alan Legg has a duty of reasonable care to keep the stairwell of his premises in a reasonably safe condition. The wet and slippery nature of the carpet had occurred for such a length of time that defendant Alan Legg should have known about it... defendant Alan Legg is bound to exercise reasonable diligence to anticipate and provide against what was likely to happen... [He] could and should have foreseen that the slippery nature of the carpet could cause someone to fall down the stairs, as happened here.... [He] permitted a dangerous and defective condition, the accumulation of water, to exist for an unreasonable period of time after he knew or should have known of its existence.

[193]*193The paucity of the evidence adduced at trial compels the conclusion that the plaintiff failed, as a matter of law, to satisfy her burden of proving that her injuries were proximately caused by anegligentactoromissionofthe defendant Alholm v. Wareham, 371 Mass. 621, 626 (1976). The trial court’s finding for the plaintiff must be reversed.

1. It is essential to note at the outset that, contrary to the plaintiffs contention, this is not a case in which the doctrine formerly denominated as res ipsa loquitur could be applied to permit inferences of negligence and causation from the mere occurrence of the accident itself. The defendant did not enjoy exclusive use and control of the premises in question which is one prerequisite to the invocation of the doctrine. Roscigno v. Colonial Beacon Oil Co., 294 Mass. 234, 235 (1936). Moreover, res ipsa loquitur is applicable only if the accident is the kind of occurrence which, in ordinary experience, does not happen in the absence of negligence. Osborne v. Hemingway Transp., Inc., 28 Mass. App. Ct. 944, 945 (1990). A person’s fall down a flight of stairs, or any fall, is a familiar phenomenon in human experience attributable to losing one’s balance, tripping or a myriad of other common causes not involving tortious conduct. Such occurrence is dissimilar to the events in the res ipsa loquitur cases cited by the plaintiff which involve the unexplained fall of objects or material debris.

2. It was thus incumbent upon the plaintiff to establish by a preponderance of the evidence that her mishap was the direct result of a defective or dangerous condition on the premises which the defendant created, had knowledge of or should have discovered and remedied in the exercise of reasonable care. Oliven v. Massachusetts Bay Transp. Auth., 363 Mass. 165, 167 (1973). The only evidence offered by the plaintiff was that she slid at the top of the stars, that the caipet was wet and that the same carpeting had been wet and slippery in the past

In the absence of additional evidence, a wet wall to wall carpet in a private home would not constitute a dangerous condition requiring remedial action. There was no evidence that the wet carpet was slippery on the day in question. But even if there had been testimony describing the carpet as slippery, the adjectives “wet” and “slippery” would not of themselves establish an actionable defect for which the defendant could be held liable in tort. See, e.g., Robinson v. Ipswich Post, 343 Mass. 771, 772 (1940); Grace v. Boston Elev. Rwy., 322 Mass. 224, 227 (1948); Gerstenzang v. Kennedy & Co., 17 Mass. App. Dec. 195, 198 (1961). There was no evidence of the age, condition, component materials or description of the carpeting, other than that it was thick, to permit an inference that it would become unreasonably or peculiarly slippery when wet. See Faulkner v. J. H. Corcoran & Co., 342 Mass. 94, 95 (1961). Compare Laskey v. First Nat’l Stores, Inc., 317 Mass. 624 (1945). The degree of the wetness of the carpeting was also notdemonstrated. Nounusual accumulation ofwateror saturation of the area at the top of the stairs was shown. See Correira v.

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Bluebook (online)
1990 Mass. App. Div. 191, 1990 Mass. App. Div. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aceto-v-legg-massdistctapp-1990.