Articles Posted in Premises Liability

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Bingham v. Supervalu, Inc. (No. 15-1437) is a federal appellate case that originated from the District of Massachusetts. In this case, an elderly woman was shopping at a grocery store in Boston when she was struck by a motorized cart, suffering a laceration to her right heel around her Achilles tendon. Soon afterward, her health declined, and she died within a year of the accident. Prior to her passing, she filed a negligence action in state court, which was taken over by her nephew, the executor of the Estate. The question that eventually gave rise to this appeal was whether or not the corporate entity that owned the grocery store was an insurer and subject to the legal obligation to negotiate a settlement as guided by Ch. 176D.

The original negligence suit was filed soon after the grocery store was purchased by a different parent company that had several subsidiaries. As part of its structure, the parent company had a centralized risk management system that oversaw the the claims made against all of its subsidiaries that were not covered by insurance. The grocery store had an insurance plan that transferred to the new parent owner, but only for amounts over two million dollars. The parent company was therefore responsible for all claims less than two million dollars. As a cost-saving measure, the company actually employed its own claims adjustors to perform the administrative functions for these sorts of claims, and it had a central account for payments made on claims. However, the parent company did not issue its own insurance policies to the subsidiaries.

The negligence suit moved forward, and two judgments were entered against the grocery store. First, there was a judgment for failing to timely respond to interrogatories, and second, $300,000 in damages were awarded to the Estate, plus post-judgment interest. The parent company declined to pay and instead chose to file an appeal to the Commonwealth Appeals Court. The decision was affirmed, but an appeal to the Supreme Court was threatened by the corporation. The Estate took a $475,000 settlement offer that was a little below the total awarded and the interest that would have been accrued to that date.
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Under Massachusetts law, business owners owe a duty to the patrons frequenting their stores to keep their premises reasonably safe. If a condition is present that caused a customer or guest to trip or slip and fall, the owner may be responsible for the related expenses incurred as a result of the condition. Liability exists when the owner knew or should have known about the accident-causing condition. In all personal injury actions, the victim must show that a duty existed between the at-fault party and the victim, that the at-fault party failed to keep that duty, that the breach resulted in an accident, and that damages arose.

In Finnegan vs. Kingpin Entertainment, Inc. (14-P-1293), a bowler and his wife filed suit, claiming that the bowling alley failed to uphold their duty to keep the premises safe for their guests. Specifically, the bowler and his wife alleged that the bowling alley used too much oil on the surface of the bowing lane, and this excess oil caused him to fall on the slippery surface. The bowler ruptured his hamstring, and the wife claimed she suffered a loss of consortium as a result of her husband’s injury. The trial court judge granted the defendant bowling alley’s motion for summary judgment, which argued that the couple did not have enough evidence to show that the bowling alley failed in its duty to keep the premises safe for its patrons.

In personal injury litigation, after a case is filed, information is exchanged and formal allegations may be made that claim or deny that there is enough evidence to present to a jury, or fact-finder, on the question of whether or not the defendant was negligent. In Finnegan, the evidence differed between each side on whether or not the bowling alley used excessive oil to keep the floors conditioned. The bowling alley claimed that they followed the appropriate procedure for oiling the lanes, leaving an eight-inch “buffer zone” between the foul line and the application of oil in the lanes. The plaintiffs presented evidence that included an inspection of the lanes after the accident in which “fluid drops” were observed in the “buffer zone” area.
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The Massachusetts Appeals Court recently found for an injured woman and her husband after she was sexually violated by an interpreter employed by a hospital. In Doe vs. Boston Medical Center Corp. (13-P-1998), a woman appealed the summary judgment issued by the trial court in favor of the hospital. The trial court granted the judgment, reasoning that the harm was not foreseeable and therefore the hospital carried no duty or liability to the injured woman and her affected family.

In all negligence actions, certain elements must be met in order for a suit to proceed. The at-fault party must owe a duty to the injured person, or a responsibility to behave or maintain themselves or their premises according to established standards. If the at-fault party, or defendant, fails to do so, and an injury results, they are liable for the damages associated with that injury. In considering whether a duty is owed, certain harms must be considered “foreseeable.” For example, if a hole forms in front of an entranceway from construction or weather in front of a storefront, it is foreseeable that someone entering the store could fall into the hole and harm themselves. It is therefore the store owner’s or manager’s responsibility to keep the premises safe and fill the hole.

In Doe, the hospital had performed a background check on the interpreter, which came back with no prior criminal history. This fact weighed heavily in the trial judge’s conclusion that the interpreter’s assault was not foreseeable, and the hospital could not be held liable for his actions. The woman was inappropriately touched by the interpreter after she was checked by several doctors and staff who exited the room, leaving her alone in the hospital bed attached to medical equipment. The interpreter also left the room with the staff but stayed behind outside her door. Since the door was unlocked, the interpreter came back into the room and claimed he needed to perform a physical exam, touching her abdomen and vagina. He left but stayed outside the room again until a nurse found him and made him leave. Soon after he left, another sexual assault was reported by a different patient in a different area of the hospital, indicating that the same interpreter was involved.
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Shop owners and other businesses owe a duty to their customers to keep the store safe from dangers. If they do not maintain the premises as required by statute and case law, they can be held liable for the injuries suffered as a result of their failure. In Bowers v. Wile’s, Inc. (14-P-313), the Appeals Court of Massachusetts reviewed a lower court’s decision based on its interpretation of the “mode of operation” approach in premises liability cases. This approach was developed in a Supreme Judicial Court decision in Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788 (2007). In this case, the court eased the burden placed on the injured person to show that the owner had actual or constructive notice of the unsafe condition on the premises. For example, if a glass jar containing liquid spilled in a grocery store, the injured party who slipped and fell on the item would have to show the grocery store managers were aware, or should have been aware, of the mess.

After Sheehan, an injured party only needs to show that the dangerous condition was “related to the owner’s self-service mode of operation.” The trial court granted the defendant store’s motion for summary judgment based on the view that the “mode of operation” approach only applies when the dangerous condition results from the breakage or spillage of items offered for sale. In this case, the injured woman was walking to a store on a clear day with no rain or snow and fell over a “river stone” that had been moved from the gravel area maintained by the store to the sidewalk. The injured woman had not seen or noticed any stones prior to her fall, and she suffered a displaced fracture on her hip that required two surgeries to repair.
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Businesses are expected to keep their premises safe for patrons. This duty under Massachusetts law requires owners and managers of property to address known harms in frequently traversed spaces like stairwells and sidewalks. Hospitals are frequently featured in personal injury discussions, either as the ultimate destination to treat injuries caused by negligence, or the site of medical malpractice. In a Massachusetts appellate case, Connaghan v. Northeast Hosp. Corp. (13-P-1419), a hospital is the location where a litigated slip and fall occurred.

The slip and fall occurred in December on a stairwell and walkway of a hospital. The injured party had walked through the walkway and later testified it was clear. He was taking his child to a pediatrician appointment and was unable to hold the lone rail on the side as he was holding his daughter with both hands. Testimony at trial showed he was not looking down or around at the ground as he stepped off the stairs. The injured man said that the walkway wasn’t clear when he came out from an appointment 30 minutes later. The injured party filed suit and took the matter to trial, but the jury found for the defendants because there was no evidence that a hospital employee or landscape worker found and reported ice prior to the injured man’s fall.
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In a Massachusetts unpublished appellate case, Silva v. The Stop & Shop Supermarket Company, LLC, the Appeals Court considered the question of what is necessary for a safe working environment. A merchandiser of a vending company injured herself while working with product displays. Part of her duties required her to remove and replace shelves and then restock with products. To do so, the merchandiser had to lift and carry materials weighing up to 35 pounds. On the date of the accident, the freight elevator was not working, and the merchandiser had to use the stairs when she transported shelves to and from the storage area. On the fourth or fifth trip, she felt a pop in her back and then severe pain.

In negligence cases, there is a discussion of whether or not someone or a company owed the injured party a duty for a safe product or environment. A trial or appellate court can rule that the person or entity alleged to have caused the injury owed no duty to the injured party, removing the liability to pay damages. In Silva, the injured merchandiser agreed that the store did not have a duty to provide elevator service, but it did have a duty to provide a working freight elevator as part of a safe working environment with the necessary safety equipment. The merchandiser also argued that elevator safety regulations required the store to provide elevator service.

The Appeals Court addressed the first argument in two parts. First, the court stated that case law has not included a freight elevator as a necessary piece of safety equipment. Chapter 149, Sec. 6 of the Massachusetts General Laws establishes the need for places of employment to provide suitable safety devices for accident prevention, as determined by Commonwealth agencies. Other sections of Ch. 149 provide specific requirements for confined spaces, power transmission equipment, and dangerous undertakings, but they do not include requirements for elevators. Without the requirement to provide elevators as safety equipment, the injured merchandiser lacked the ability to show the store had a duty to her to provide a safe environment in which to work.
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During the winter months, Massachusetts residents brace for the snow and ice that cause slick and slippery roads, sidewalks, and driveways. Some public establishments take the time and care necessary to ensure safe passage, while others neglect their property. Injuries that occur due to poor property maintenance are known as “slip and fall” cases, and more formally as “premises liability.” Slip and falls extend beyond icy passages and can include accidents like a slippery floor in a grocery store, or a decrepit, poorly lit staircase in an apartment complex. Owners are responsible under state law to maintain their premises in a safe condition for everyone who can reasonably expected to be on the property. If someone suffers an injury as a result of neglect, she or he can seek compensation for medical bills, lost wages, and pain and suffering from the property owner.

Thorough investigation conducted as soon as possible after the injury can greatly aid in the pursuit of damages. Each slip and fall case is unique, and individual facts that arise from an investigation can affect the outcome and amount of award an injured party receives. Frequently, owners will point to the injured party’s actions to rebut claims of negligence, or to their own attempts to warn or prevent injury.

The Commonwealth Court of Massachusetts recently issued a Memorandum and Order in Monaco vs. Vacation Camp Resorts International, Inc., which provides an example of the legal analysis conducted in a premises liability case. In this case, a man sought recovery for serious injuries when he fell down a hill. This hill was used by campers to reach a shower building, and the injured guest argued that the owners of the resort failed to light the pathway, keep it in a safe condition, or warn against its dangers. The trial court issued a summary judgment in favor of the resort, and the injured guest appealed.
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As school and extra-curricular activities pick up around the state of Massachusetts, concern over serious and permanent injuries may arise among parents. Even with the best of care and protective gear, accidents can happen on sports fields or while in a bus on the way to an activity. No parent wants to see any type of harm befall his or her child, but knowledge of what options are available in the event of an injury is essential when there is a catastrophic injury to the head, neck, or spine. Accountability is also important if a person or facility failed to maintain safe premises as required by law. A civil action may provide the remedies you need by holding an at-fault party responsible for negligence and receiving payments for the money spent on medical expenses.

One of the first steps of a personal injury suit is determining who is responsible for the injury. In most auto accident cases, it is a straightforward determination that the driver of the car that caused the harm is the responsible party. In other personal injury suits, several parties can share blame for the injury. In the 2013 Massachusetts case, Moore v. Town of Billerica, the Court looked at whether or not the city should be held accountable for a serious head injury sustained by a child at a public baseball field. The trial court denied the city’s motion for summary judgment, which claimed that it could not be sued due to the protection of sovereign immunity.
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In New England, old man winter is here for about five months, and depending on what the groundhog sees, more winter may be yet to come! Snow and ice is everywhere and Massachusetts residents should be prepared to battle these icy conditions. A slip on ice or frozen snow can cause serious injuries. Massachusetts tort law allows injured persons to sue property owners for failing to remove dangerous conditions from their property.

 

 
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The general rule in Massachusetts is that a property owner has the duty to maintain their property in a reasonably safe condition given the circumstances. Mounsey v. Ellard, 363 Mass. 693 (1973). This is why we usually remove broken glass from our floors and clean up slippery liquid spills in our homes.

This duty to keep property reasonably safe includes the obligation to warn lawful visitors of dangerous conditions, such as those glass or liquid spills that somehow haven’t been cleaned up. However, the law states that the property owner has no duty to warn visitors of dangers that are “open and obvious” to a person of reasonable intelligence. O’Sullivan v. Shaw, 431 Mass. 201 (2000). In other words, if there is a large bright red liquid puddle on a white tile floor in a well-lit room, the owner need not warn a visitor because the hazard is apparent.

Like most rules, they are based on some degree of common sense. But, we live in a world where common sense doesn’t always govern human behavior. People are often unpredictable, and the law sometimes struggles to keep up.
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