Callis v. New England Telephone & Telegraph Co.

4 Mass. L. Rptr. 628
CourtMassachusetts Superior Court
DecidedNovember 15, 1995
DocketNo. 943661
StatusPublished

This text of 4 Mass. L. Rptr. 628 (Callis v. New England Telephone & Telegraph Co.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Callis v. New England Telephone & Telegraph Co., 4 Mass. L. Rptr. 628 (Mass. Ct. App. 1995).

Opinion

Garsh, J.

This is an action for damages sustained as a result of the plaintiff, Maureen Callis (“Callis”), having suffered injuries when she tripped over a telephone outlet box affixed to the floor in premises leased to the defendant, New England Telephone and Telegraph Company (“NET”). At the time the accident occurred, the American Red Cross (“Red Cross”), plaintiffs employer, was using a vacant portion of defendant’s premises, with the defendant’s permission, to conduct a blood drive.

The defendant now moves for summary judgment on the grounds that it is not liable for plaintiffs injuries because the Red Cross had control of the [629]*629premises and NET was entitled to rely on the American Red Cross’s expertise in evaluating the suitability of the room for a blood drive and because the box in question was open and obvious. Alternatively, NET seeks a partial summary judgment ruling that any damages awarded to the plaintiff in this action must be reduced, pursuant to G.L.c. 231, §85K(2), because the room was being used for charitable purposes when the accident happened. For the following reasons, NETs motion for summary judgment is denied.

BACKGROUND

The following facts are undisputed: Plaintiff was retrieving supplies from the far end of the room used by Red Cross employees when someone rang an alarm bell. As Cailis turned to respond, she tripped over a silver-colored telephone outlet box, approximately four inches wide by four inches high, located on the floor. Cailis had seen similar outlet boxes in other areas of the room, but she had not seen the particular one over which she tripped.

Before the blood drive began, a Red Cross employee evaluated the room for such matters as lighting and the availability of telephones and safety doors. In evaluating the room, that person’s primary concern was donor safety. NET had an employee responsible for coordinating the blood drive. She noticed the outlet boxes on the floor and was concerned that they might be a danger to users of the room. Accordingly, she used chairs and partitions to cover the ones that were in the area where donors would be walking. She did not cover the box on which the plaintiff tripped.

DISCUSSION

Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, “and [further] that the moving party is entitled to judgment as a matter of law.” Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989).

Negligence

A landowner or occupier owes a duty to use reasonable care to prevent injury to all lawful visitors and “to take those steps to prevent injury that are reasonable and appropriate under all the circumstances,” taking into account the likelihood of injury to others, the seriousness of the injury, and the proper allocation of the risks involved. Upham v. Chateau de Ville Dinner Theatre, Inc., 380 Mass. 350, 353 (1980), quoting Poirier v. Plymouth, 374 Mass. 206, 228 (1978). That includes the occupier’s obligation to use reasonable care to keep the premises in a reasonably safe condition. Mounsey v. Ellard, 363 Mass. 693, 700 (1973). The Red Cross and its employees, such as the plaintiff, were lawful visitors. The defendant invited the Red Cross to use part of its office space for a blood drive. The mere fact that the Red Cross evaluated the premises for its suitability for a blood drive does not absolve the defendant, as a matter of law, from liability for negligence in connection with a preexisting defect in the premises about which it knew or should have known. Where a person is allowed to conduct business on another’s property, but does not acquire exclusive possession of the premises, the licensor has the duty to exercise reasonable care to maintain the premises in a reasonably safe condition for those using it for the purpose for which it has been licensed. Willett v. Pilotte, 329 Mass. 610 (1953).

The defendant argues that the Red Cross had assumed exclusive control of the premises, but the record does not mandate that finding. NET was the lessee. While Red Cross employees were setting up tables and chairs, an employee of NET was walking about the room where the blood drive was to take place covering some, but not all, outlet boxes. There also is evidence that an employee of NET was herself involved in the actual setting up of the chairs and tables in the room. Such facts are admissible to show NET not only retained, but also exercised, control over the premises. Moreover, the outlet box was a condition existing before the Red Cross assumed any alleged control of the premises and the nature of the condition supports an inference that NET either created or had actual knowledge of the condition. That the Red Cross did not itself cover the outlet box in question when setting up the room might be an intervening cause, but it is'not, as a matter of law, a superseding cause relieving the defendant of liability for harm which its negligence may have been a substantial factor in producing. Cf. Romano v. Massachusetts Port Authority, 3 Mass.App. 765 (1975) (even though airport was not in control of lights in parking lot nor the placement of railroad ties in the lot, it is not relieved of duty to warn lawful visitors of dangers existing in the lot where it could have been found to be in control of lot).

Plaintiffs expert has opined that failure to protect the exposed outlet box represented a clear hazard when on a floor surface used for normal walking purposes and that allowing the use of a room with such an unsafe “egress condition” is a violation of the Massachusetts Building Code. Aviolation of the Building Code, while not conclusive on the ultimate issue, is some evidence of a violator’s negligence. LaClair v. Siberline Manufacturing Co., Inc., 379 Mass. 21, 27-28 (1979).

Defendant also contends that, insofar as the plaintiffs claim is based upon negligent failure to warn of any unreasonable dangers, it had no duly to warn of the potential tripping hazard posed by the outlet box because it was a danger obvious to persons of average intelligence.2 The plaintiff has testified in her deposition that she did not see the outlet box in question and NET’S employee, who inspected the room, did not testify that she saw the outlet box in question, but [630]*630failed to cover it. Whether it was known or obvious to persons of normal intelligence or whether NET was entitled to assume that the plaintiff had knowledge cannot be resolved on this record.

“Usually ‘the question of negligence is one of fact for the jury. Only when no rational view of the evidence warrants a finding that the defendant was negligent may the issue be taken from the jury.’ ” Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983), quoting Zezuski v. Jenny Mfg. Co., 363 Mass. 324, 327 (1973). Here, drawing all inferences in favor of Callis, there is sufficient evidence from which reasonable jurors could find that NET owed a duty of care to the plaintiff, that it was negligent, and that its negligence caused plaintiffs injury.

Limited liability

NET maintains that it is entitled to limited liability because the alleged tortious conduct occurred in the course of a charitable activity. G.L.c. 231, §85K provides, in part, as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Zezuski v. Jenny Manufacturing Co.
293 N.E.2d 875 (Massachusetts Supreme Judicial Court, 1973)
Pederson v. Time, Inc.
532 N.E.2d 1211 (Massachusetts Supreme Judicial Court, 1989)
Mounsey v. Ellard
297 N.E.2d 43 (Massachusetts Supreme Judicial Court, 1973)
Poirier v. Town of Plymouth
372 N.E.2d 212 (Massachusetts Supreme Judicial Court, 1978)
Young v. Atlantic Richfield Co.
512 N.E.2d 272 (Massachusetts Supreme Judicial Court, 1987)
LaClair v. Silberline Manufacturing Co., Inc.
393 N.E.2d 867 (Massachusetts Supreme Judicial Court, 1979)
Cassesso v. Commissioner of Correction
456 N.E.2d 1123 (Massachusetts Supreme Judicial Court, 1983)
Upham v. Chateau De Ville Dinner Theatre, Inc.
403 N.E.2d 350 (Massachusetts Supreme Judicial Court, 1980)
Mullins v. Pine Manor College
449 N.E.2d 331 (Massachusetts Supreme Judicial Court, 1983)
Colby v. Carney Hospital
254 N.E.2d 407 (Massachusetts Supreme Judicial Court, 1969)
Thorson v. Mandell
525 N.E.2d 375 (Massachusetts Supreme Judicial Court, 1988)
Willett v. Pilotte
109 N.E.2d 840 (Massachusetts Supreme Judicial Court, 1953)
McDonald v. Massachusetts General Hospital
120 Mass. 432 (Massachusetts Supreme Judicial Court, 1876)
Reavey v. Guild of St. Agnes
187 N.E. 557 (Massachusetts Supreme Judicial Court, 1933)
Romano v. Massachusetts Port Authority
330 N.E.2d 495 (Massachusetts Appeals Court, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
4 Mass. L. Rptr. 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callis-v-new-england-telephone-telegraph-co-masssuperct-1995.