Pettie v. Stop & Shop Supermarket Co.

1996 Mass. App. Div. 41, 1996 Mass. App. Div. LEXIS 16
CourtMassachusetts District Court, Appellate Division
DecidedMarch 11, 1996
StatusPublished
Cited by10 cases

This text of 1996 Mass. App. Div. 41 (Pettie v. Stop & Shop Supermarket Co.) 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
Pettie v. Stop & Shop Supermarket Co., 1996 Mass. App. Div. 41, 1996 Mass. App. Div. LEXIS 16 (Mass. Ct. App. 1996).

Opinion

Furnari, J.

This is an action in tort to recover for personal injuries sustained by the plaintiff in a fall in the defendant’s supermarket. The trial court entered judgment for the plaintiff in the amount of $8,000.00, and the defendant appealed to this Division pursuant to Dist./Mun. Cts. RADA, Rule 8C.

The record indicates that at the time of the incident on October 20,1989, it had been raining steadily for three days. As the plaintiff entered the defendant’s market, she observed that the floor was soaking wet and appeared to be slippery, but that there were no mats or warning signs of any kind. The plaintiff still proceeded cautiously, taking small slow steps and holding the hand of her niece. After entering only about four feet into the store, the plaintiff slipped, attempted unsuccessfully to break her fall with her left hand, and landed on her back.1 The location of the plaintiff’s fall was adjacent to the check-out area in the front of the defendant’s supermarket.2 There was no evidence that the defendant created the wet and slippery condition, or was actually aware of it.

At the conclusion of the plaintiff's evidence, the defendant filed a Dist./Mun. Cts. R. Civ. R, Rule 41(b) (2) motion for involuntary dismissal on the grounds that the plaintiff had demonstrated “no right to relief.” The motion was denied.

At the close of all of the evidence, the defendant filed requests for both findings [42]*42of fact and rulings of law. The court properly declined to act on the defendant’s requests for findings, see Dist./ Mun. Cts. R. Civ. R, Rule 52 (a), LaFoley v. Ferbas, 335 Mass. 769 (1957), denied all six of the defendant’s requests for rulings of law, and filed extensive findings of fact which included the following:

There had been a prolonged period of rain preceding and through the date of the incident. When the plaintiff entered the store, she immediately observed that the floor was slippery and soaking wet. There were no mats and no signs indicating that the floor was wet or warning people entering the store of the condition of the floor....
There were a number of Stop & Shop employees in the vicinity of the fall which took place near the check out area.... There was no credible evidence that any of the employees in the area of the slippery and wet floor were taking steps to correct the condition of the floor which I find was clearly visible to the employees.... The plaintiff has proven by the preponderance of the evidence that the floor was ‘slippery and very wet,’ that the condition was in plain view of Stop & Shop employees, that the ’slippery and very wet’ condition of the floor was present for a substantial period of time, that Stop & Shop had had a reasonable time in which to discover the condition and remedy it,... I further find that the plaintiff exercised that degree of care that an ordinary reasonable person would have exercised under the circumstances which existed at the time of the accident....

1. An appeal to this Division is commenced by the timely filing of a proper notice of appeal and the payment of a filing fee pursuant to Dist./Mun. Cts. R.AD.A., Rules 3,4. The requisite contents of a notice of appeal are prescribed by Rule 3(c), and include:

(2) a concise statement of the issues of law presented for review, [and]
(3) the judgment, ruling, finding, decision or part thereof being appealed....

With respect to the contents of the notice, Rule 3(c) expressly provides that the “[n]otice of appeal shall limit the scope of the appeal....”

The defendant’s notice of appeal in this case simply recites:

The issues presented for review include the Court’s Findings of Fact and Rulings of Law, the Court’s refusal to grant the Rule 41 Motions, the Court’s refusal to allow the defendant’s Requests, the Court’s finding of negligence and the judgment.

Such recitation merely identifies the procedural mechanisms by which questions of both fact and law were raised by the defendant and resolved by the trial court, and fails to serve as the statement of specific legal issues framed for appellate consideration which is mandated by Rule 3(c). Such a complete omission.of any statement of issues in a notice of appeal may well, in a future case, result in a forfeiture of any right to appellate review.

2. In this case, a single, dispositive issue of law is readily apparent from the court’s denial of both the defendant’s Rule 41 (b) (2) motion and its requests for rulings numbers 1,2 and 6;3 namely, the legal sufficiency of the plaintiff’s evidence to [43]*43permit a finding in her favor. Confining our analysis to this determinative issue, we concur with the defendant that the plaintiff failed to establish anything more than the existence of a transitory condition of water on business premises attributable to the tramping of feet in wet weather for which no liability in negligence could reasonably attach. See, e.g., Battista v. F.W. Woolworth Co., 317 Mass. 179, 180-181 (1944): Moors v. Boston Elev. Rwy. Co., 305 Mass. 81, 82-83 (1940); Tariff v. S.S. Kresge Co., 299 Mass. 129, 130 (1937); Wexler v. Stanetsky Mem. Chapel of Brookline, Inc., 2 Mass. App. Ct. 750, 751-752 (1975).

The only evidence advanced by the plaintiff was that the floor of the defendant’s supermarket was very wet and slippery on the rainy day in question. The adjectives “wet” and “slippery” are not alone sufficient, however, to establish the existence of an actionable condition for which the defendant could be held liable. Dolan v. Boston & Maine R.R., 328 Mass. 532, 534 (1952); Livingston v. Friend Bros., Inc., 302 Mass. 602 (1939); Kiley v. New York, N.H. & Hart, R.R., 301 Mass. 570, 571 (1938); Aceto v. Legg, 1990 Mass. App. Div. 191, 193. There was no additional evidence at trial, e.g., of any defect, wear or unnatural condition in the flooring which rendered it peculiarly slippery when wet. Lowe v. National Shawmut Bank of Boston, 363 Mass. 74, 77-78 (1973); Tavano v. Worcester, 287 Mass. 420, 423 (1934). Compare Murray v. Donelan, 333 Mass. 228, 229 (1955) (piece of tin nailed to floor by defendant made floor unusually slippery on rainy day); Laskey v. First Nat'l Stores, Inc., 317 Mass. 624, 626-627 (1945) (floor particularly slippery when rainwater combined with oil treatment placed on floor by defendant).

Nor was there any evidence of an unusually large accumulation of water. A slippery condition resulting from inclement weather of the sort alleged by the plaintiff herein would permit a finding of negligence only where there was evidence of “water in larger quantity or for a greater length of time than was naturally to be expected in the circumstances.” Grace v. Jordan Marsh Co., 317 Mass. 632, 633 (1945). See also Policronis v. Jordan Marsh Co., 333 Mass. 767, 767-768 (1955). The plaintiff never described even a single puddle, pool or other quantifiable deposit of water of any kind that the defendants employees should have discovered and remedied in the exercise of due care. Compare Correira v. Atlantic Amusement Co., 302 Mass. 81, 82 (1939) (water puddle was “of such depth that a movement of the foot would cause a splash”).

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Cite This Page — Counsel Stack

Bluebook (online)
1996 Mass. App. Div. 41, 1996 Mass. App. Div. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pettie-v-stop-shop-supermarket-co-massdistctapp-1996.