Gurvich v. Stop & Shop Companies

25 Mass. L. Rptr. 597
CourtMassachusetts Superior Court
DecidedJune 10, 2009
DocketNo. 0704774
StatusPublished
Cited by2 cases

This text of 25 Mass. L. Rptr. 597 (Gurvich v. Stop & Shop Companies) 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
Gurvich v. Stop & Shop Companies, 25 Mass. L. Rptr. 597 (Mass. Ct. App. 2009).

Opinion

MacLeod-Mancuso, Bonnie H., J.

This negligence action is based on plaintiff Luydmila Gurvich’s (“Gurvich”) slip and fall which allegedly occurred on December 10, 2004 on the premises of a Super Stop & Shop supermarket (the “Premises”) located in Med-ford, Massachusetts owned by defendant, Stop and Shop Companies, Inc. (S&S). S&S now moves for summary judgment, arguing that there is no evidence from which a fact finder could infer that the plaintiffs accident was caused by S&S’s negligence. For the following reasons, after a hearing, defendant’s motion is ALLOWED.

BACKGROUND

The court summarizes the relevant facts taken from the summary judgment record in the light most favorable to the nonmoving party. See Attorney Gen. v. Bailey, 386 Mass. 367, 371 (1982).

By all accounts, it rained and the ground was wet on December 10, 2004 when Gurvich had her accident. At approximately 3:00 p.m., Gurvich and her co-worker Natalia Ventura (“Ventura”), walked from the T.J. Maxx where they worked, to the Premises located within the same shopping plaza. Gurvich used an umbrella. When the two arrived at the Premises, Gurvich stomped her feet on a mat just inside the entrance, shook the water off of her umbrella and, folding it under her arm, walked into the store. Gurvich and Ventura then walked across the store towards the produce department. When Gurvich was two or three cash registers away from the entrance, she slipped and fell to the floor. Gurvich did not see anything on the floor before she fell. Gurvich claims, however, that after she had fallen, she observed a store employee using several sheets of paper towel to wipe up some unknown clear liquid from the area of the floor where she had fallen.

DISCUSSION

I. Standard of Review

A motion for summary judgment should be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the record entitles them to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 711 (1991). A party who does not bear the burden of proof at trial may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party’s case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Commc’ns Corp., 410 Mass. 805, 809 (1991); Kourouvacilis, 410 Mass, at 716. Once the moving party “establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact.” Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). In deciding a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Mass.R.Civ.P. 56(c); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). The court reviews the evidence in the light most favorable to the nonmoving party, but does not weigh evidence, assess credibility, or find facts. Bailey, 386 Mass. at 370-71.

II. Negligence

Generally, a store owner must maintain the premises “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 783-84 (2007). “Under the traditional approach to premises liability, the plaintiff is required to prove a grocery store caused [598]*598a substance, matter or item to be on the floor; the store operator had actual knowledge of its presence; or the substance, matter, or item had been on the floor so long that the store operator should have been aware of the condition.” Id. at 782-83. “However, if a plaintiff proves that an unsafe condition on an owner’s premises exists that was reasonably foreseeable, resulting from an owner’s self-service business or mode of operation, and the plaintiff slips as a result of the unsafe condition, the plaintiff will satisfy the notice requirement.” Id. at 791.

Gurvich does not allege, and the record does not support the conclusion, that S&S caused the liquid to be on the floor. Nor does the evidence viewed in the light most favorable to Gurvich allow the inference that S&S had actual or constructive knowledge that the liquid was on the floor. Therefore, the evidence viewed in the light most favorable to Gurvich is insufficient to create a genuine issue of material fact as to S&S’s liability under the traditional rule for Premises liability for a case such as this. Instead, Gurvich argues that the water represents an unsafe condition on the Premises that resulted from S&S’s self-service business or mode of operation. In short, Gurvich argues that S&S knew or should have known that patron foot traffic would lead to the accumulation of liquid on the floor and that the self-service shopping would draw patrons’ attention towards items on the shelves and away from possible hazards beneath their feet — thus creating a greater risk that an invitee might slip and fall. Under these conditions, Gurvich argues, a question of fact exists as to whether S&S took all reasonable precautions necessary to protect invitees from danger. The Court disagrees.

The “mode of operation” rule announced in Sheehan is inapposite here. Id. at 790. Sheehan did not announce the mode of operation approach “as a wholly new law, but merely a refinement of the elements of proof in a premises liability case.” Id. at 791. Where a premises owner’s mode of operation makes it reasonably foreseeable that a dangerous condition, such as a liquid on the floor, will occur, the owner can be held liable if the plaintiff proves that the owner failed to take reasonable precautions necessary to protect customers from these foreseeable dangerous conditions. Id. at 786. This is not strict liability. Id. at 790. The attractive presentation of products on a supermarket’s shelves, no matter how alluring, does not constitute an inherently dangerous “mode of operation” sufficient to relieve Gurvich of the duly to show “a dangerous condition and notice of a dangerous condition.” Id.

Further, the facts of this case clearly distinguish it from Sheehan. In Sheehan, a plaintiff shopping at a self-service grocery store slipped and fell after stepping on a grape that had fallen from a fruit display. Id. at 791. The Supreme Judicial Court held that “fruit and vegetable debris presents an obvious risk of injury to a customer and a reasonably prudent person would not place these items in an aisle or allow them to remain there.” Id. Ultimately, the Court held that summary judgment for defendant premise owner was inappropriate because “the trier of fact must determine whether the owner could reasonably foresee or anticipate that a foreseeable risk stemming from the owner’s mode of operation could occur and whether the owner exercised reasonable care in maintaining the premise in a safe condition commensurate with these foreseeable risks.” Id.

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Bluebook (online)
25 Mass. L. Rptr. 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gurvich-v-stop-shop-companies-masssuperct-2009.