Santolucito v. DeMoulas Super Markets, Inc.

30 Mass. L. Rptr. 375
Massachusetts Superior Court·Decided October 10, 2012·No. No. MICV200800610F·Published

Opinion

Curran, Dennis J., J.

John Santolucito was injured in a slip and fall incident in a parking lot owned by DeMoulas Super Markets, Inc. Domenick Zanni Sons, Inc. was hired by DeMoulas Super Markets, Inc. to remove snow and ice from the parking lot and was responsible for removing the snow on the date of the injury. This matter is before the Court on Zanni Sons, Inc.’s motion for summary judgment. Mr. Santolucito claims that the defendants negligently maintained the parking lot and allowed and/or created unsafe conditions that led to his injury. Zanni Sons, Inc. has moved for summary judgment contending that it did not owe Mr. Santolucito a duty, it reasonably performed its obligations under the snow removal contract and it was not otherwise negligent.

For the following reasons, Zanni Sons, Inc.’s motion for summary judgment is DENIED.

BACKGROUND

The undisputed facts, as revealed by the summary judgment record, are as follows.

On February 21, 2005, John Santolucito was injured when he slipped and fell in the parking lot of a Market Basket located in Middleton, Massachusetts.2 The accident occurred in the midst of a snowstorm3 and the area of the parking lot where Mr. Santolucito fell was covered in a layer of “black ice,” which was then covered by a thin layer of freshly-fallen snow.

On the day of the accident, the snow began to fall around 3:00 a.m. A total of six inches of snow fell that day. The snow removal contractor, Zanni Sons, Inc., began plowing the parking lot around 4:00 a.m. Market Basket opened at 7:00 a.m. and Mr. Santolucito arrived at the store between 7:30 and 8:00 a.m. to purchase some groceries. About three inches of snow had fallen by that time and Zanni Sons, Inc. had cleared the parking lot numerous times.

Mr. Santolucito parked in the lot and entered the store without incident. He did not speak with any employees about the conditions outside, nor did he complain about the snow removal efforts in the parking lot. He spent about fifteen minutes shopping and then left the store through the same door and headed for his car. He was carrying two bags of groceries, wearing sneakers, and, admittedly, walking “kind of fast” when he slipped. At the time he fell, he was walking next to another shopper whom he warned to be careful because the lot was slippery. He was looking straight-ahead while he walked. While in the parking lot and walking towards his car, Mr. Santolucito slipped on “black ice” and suffered serious physical injuries.

[376]*376The ice that Mr. Santolucito slipped on was a patch of black ice about six feet by six feet that was covered by a light dusting of snow. The snow that covered the ice was light and fluffy; it had no dirt, debris, prints, ruts, or indentations in it. Zanni Sons, Inc. had not applied any sand or salt to the lot before Mr. Santolucito’s fall. Zanni Sons, Inc. was not permitted to sand or salt the lot unless expressly told to do so by DeMoulas Super Markets, Inc. At some point later that day, probably around noon, DeMoulas Super Markets, Inc. instructed Zanni Sons, Inc. to sand the lot. They did so.

Zanni Sons, Inc. used two pickup trucks with steel, snowplow blades mounted on them to clear the snow from the parking lot. They also employed two front-end loaders to move the snow into large piles. The steel blades on the plows may have become hot as they ran along the ground and this could have caused some of the snow to melt and ice to form if the melted snow refroze.4 Zanni Sons, Inc. spent a total of twelve hours clearing snow from the parking lot on February 21, 2005 and spent another four hours the next day completing the clean up.

The business arrangement between DeMoulas Super Markets, Inc. and Zanni Sons, Inc. required Zanni Sons, Inc. to stake the islands in the parking lot before winter, provide a certificate of insurance, and, most importantly, provide snow removal services. These services were not comprehensive because DeMoulas Super Markets, Inc. opted to shovel its own entrance ramps and walkways and also decided when or if Zanni Sons, Inc. should sand or salt the parking lot. At the time of the incident, Zanni Sons, Inc. was responsible for snow removal in the parking lot in question.

Mr. Santolucito has alleged that DeMoulas Super Markets, Inc. and Zanni Sons, Inc. were negligent because they 1) caused or allowed a dangerous accumulation of ice to occur; 2) failed to remove the accumulation; 3) failed to treat the accumulation with sand or salt; and 4) failed to keep the area safe. Additionally, the plaintiffs now-deceased wife, Claire Santolucito, has brought claims for loss of consortium and pain and suffering based upon her husband’s injuries and subsequent debilitation. Both defendants have also filed cross claims for contribution and indemnification against one another.

DISCUSSION

Summary judgment is granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). For issues that the moving party does not have the burden of proof at trial, the absence of a triable issue may be shown by the submission of affirmative evidence that negates an essential element of the opposition’s case, or materials showing “that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts that would establish the existence of a genuine issue of material fact. Id. Parties may not rely on bare assertions and conclusions to create a dispute necessary to defeat summary judgment. Benson v. Massachusetts Gen. Hosp., 49 Mass.App.Ct. 530, 532 (2000), quoting Polaroid. Corp. v. Rollins Envtl. Servs., Inc., 416 Mass. 684, 696 (1993). The court views the evidence in the light most favorable to the non-moving party, but does not weigh the evidence, assess credibility, or And facts. Attorney Gen. v. Bailey, 386 Mass. 367, 370-71 (1982).

Negligence Claim

Zanni Sons, Inc. asserts various reasons why it should be granted summary judgment; however, as discussed below, its motion must be denied because it owed Mr. Santolucito a duty to act reasonably, and questions of reasonableness are reserved for the fact finder. See, e.g., Manning v. Nobile, 411 Mass. 382, 388 (1991) ([S]ummaiy judgment is seldom sought or granted in negligence actions”) (citations omitted).

First, Zanni Sons, Inc. argues that only DeMoulas Super Markets, Inc., as owner of the premises, owed a duty to Mr. Santolucito. In Papadopoulos v. Target Corp., 457 Mass. 368 (2010), the Supreme Judicial Court held that, “the same obligation of reasonable care that a property owner owes to lawful visitors regarding all other hazards” now applies to hazards arising from snow and ice. Papadopoulos, 457 Mass. at 369. However, as Zanni Sons, Inc.

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Santolucito v. DeMoulas Super Markets, Inc., 30 Mass. L. Rptr. 375 (Mass. Ct. App. 2012).

30 Mass. L. Rptr. 375 (Santolucito v. DeMoulas Super Markets, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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