Smart v. Demoulas Supermarkets, Inc.

2008 Mass. App. Div. 105, 2008 Mass. App. Div. LEXIS 51
CourtMassachusetts District Court, Appellate Division
DecidedMay 16, 2008
StatusPublished
Cited by1 cases

This text of 2008 Mass. App. Div. 105 (Smart v. Demoulas Supermarkets, Inc.) 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
Smart v. Demoulas Supermarkets, Inc., 2008 Mass. App. Div. 105, 2008 Mass. App. Div. LEXIS 51 (Mass. Ct. App. 2008).

Opinion

Swan, J.

On June 28,2003, the plaintiff entered the defendant’s supermarket and slipped and fell in the frozen foods department, injuring her knee and back. She filed this suit to recover damages for the defendants alleged negligence. The defendant successfully moved for summary judgment, and the plaintiff appealed that Mass. R. Civ. E, Rule 56 ruling.

Viewing the evidence in the light most favorable to the plaintiff, Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), the record indicates the following. The plaintiff, Kathleen Smart (“Smart”), arrived at the Tewksbury supermarket owned by the defendant, Demoulas Supermarkets, Inc. (“Market Basket”), in late morning and selected a shopping cart After visiting the meat department, she proceeded to the deli counter at the back of the store and took a ticket. Since her number was “faraway,” she left her cart and walked down aisle no.l toward the front of the store to get tuna fish. Although the cans of tuna fish were on the left side of the aisle, Smart kept to the right, close to the frozen food case,1 as another woman was pushing a shopping cart toward Smart on the left-hand side. When Smart was about even with the woman, Smart slipped, falling onto her left kneecap, with one leg going forward and the other back. Her hands and knee felt wet, “in the middle” between “a little damp versus lots of water.” The other woman was unable to help Smart to her feet and went for help. As she tried to stand up, Smart “glance [d] “ at the floor and saw clear water, with no markings, debris, paper, footprints, bubbles, stickiness, or grit. A store employee responded and, without slipping or sliding, helped Smart to her feet. The other woman told the employee that there was water on the floor; it appeared to Smart that “he was learning this for the first time.”

John Gordon (“Gordon”), who has been the store director for thirteen years, testified at his deposition that Smart was standing when he arrived at the scene.2 He saw a small puddle of water about the size of his fist and about a centimeter deep. Every night, according to Gordon, the supermarket floor is cleaned and polished; the person assigned “would dry mop the store of loose papers and debris. He has a floor machine that he would use — basically wash the floor, and then a polisher.” In addition, said Gordon, “throughout the day it is cleaned as we see fit — or as I see [106]*106fit.” Most of the employees “are at some point trained to supervise and watch for the floor, particularly breakages — something that might end up on the floor... [and] would know, if something happens, to alert someone to take care of it.” On the morning of Smart’s fall, there had been no reports of puddles in aisle no. 1. To the best of Gordon’s knowledge, there had been no leakage from the coffin cases.

1. ‘The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc., supra at 120. Market Basket submits that summary judgment was properly entered on the authority of Oliveri v. Massachusetts Bay Transp. Auth, 363 Mass. 165, 166-167 (1973), and other cases that subscribe to the “traditional approach” to premises liability. We agree.

The traditional approach, which was relied on by both the parties and the trial court, is stated in the RESTATEMENT (SECOND) OF TORTS §343,215-216 (1965) as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

In the case of a supermarket, a plaintiff must prove that the “store caused a 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.” Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 782-783 (2007). See Mounsey v. Ellard, 363 Mass. 693, 708 (1973).

Undeniably, Smart slipped on Market Basket’s floor. She failed, however, to prove causation. Whether the fall was caused by the small, fist-sized puddle of water — first noticed by Smart after her fall when she felt “in the middle” between “a little damp versus lots of water” — is merely speculative.3 Even if it is assumed that the water caused the fall, no proof was presented connecting any activity by Market Basket to the presence of the water, whether by application or spilling by an employee, condensation from the coffin case, or the like. There is also no evidence that Market Basket knew of the water’s presence. Indeed, Smart acknowledged in her deposition that the store employee who assisted her, when told of the water, looked like “he was learning this for the first time.” Nor is it known whether the water was on the floor for a sufficient duration to charge Market Basket with constructive notice of both its presence and the need to remove it. The evidence, in fact, suggests the contrary. Even after Smart’s knee and hands had apparently displaced part of the puddle, the water still had none of the indicia of having been there a long time. Smart herself described it as having no markings, paper, footprints, debris, bubbles, stickiness, or grit, i.e., the type of conditions or characteristics that have been held to be sufficient evidence of the duration of the defect and, [107]*107thus, of constructive notice to the defendant. See, e.g. Gallagher v. Stop & Shop, Inc., 332 Mass. 560 (1955) (dirty, sloppy, messy ice cream, with heel marks, covering 12 inches of floor); Hudson v. F.W. Woolworth Co., 275 Mass. 469 (1931) (piece of dirty, grimy candy, with heel marks); Anjou v. Boston Elevated Ry., 208 Mass. 273 (1911) (dry, gritty, dirty, decayed banana peel).

In Leary v. Jordan Marsh Co., 322 Mass. 309 (1948), the plaintiff slipped or fell well inside the defendant’s store on a rainy day. She did not know what caused her to fall. Her companion, however, saw “three little pools of water each about the size of a dinner plate” with “dry mud around the edge of one of the pools” in the location of the fall. Id. at 309-310. There were also two skid marks that appeared to have been made by a heel. Upholding a verdict for the defendant, the Court held that “the mere presence of [dirty] water... has no tendency to prove that it had been on the floor long enough so that the defendant should have seen it and mopped it up.” Id. at 310-311, quoting Tariff v. S.S. Kresge Co., 299 Mass. 129, 130 (1937). Smart’s case, involving only one small puddle and no dirt, is far less compelling. Summary judgment for Market Basket was properly entered.

2. Smart urges us to apply the rule set forth in Sheehan v. Roche Bros. Supermarkets, Inc., supra,

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Bluebook (online)
2008 Mass. App. Div. 105, 2008 Mass. App. Div. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smart-v-demoulas-supermarkets-inc-massdistctapp-2008.