Arruda v. D and P Janitorial Services, 2004 Mass. App. Div. 1 (Mass. App. Div. 1/9/2004)

• Decision Date: 09 January 2004
• Citation: 2004 Mass. App. Div. 1
• Parties: Frances Arruda and Domingos Arruda <I>v.</I> D and P Janitorial Services.
• Court: Massachusetts Appellate Division

Page 1

2004 Mass. App. Div. 1

Frances Arruda and Domingos Arrudav.

D and P Janitorial Services.

Massachusetts Appellate Division

Southern District.

January 9, 2004.

Present: Wheatley, P.J., Williams & Dawley, JJ.

Negligence, Of janitorial service.

Tort, Slip and fall in supermarket; Personal injury; Loss of consortium.

Practice, Civil, Summary judgment.

Opinion affirming allowance of defendant's summary judgment motion. Motion heard in the New Bedford Division by Gregory R. Baler, J.

Richard Cunha for the plaintiff.

Allen E. Levin for the defendant.

DAWLEY, J.

After sustaining injuries when she slipped and fell while shopping in a supermarket, Frances Arruda ("Arruda") and her husband brought a personal injury and loss of consortium action against Stop and Shop Supermarket Company and D and P Janitorial Services ("D and P"). Arruda appealed from the allowance of a motion for summary judgment in favor of D and P.

There was no error in the motion judge's allowance of D and P's motion for summary judgment. D and P correctly argued at the motion hearing that Arruda failed to present any evidence that D and P proximately caused Arruda's injuries. Arruda, citing Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516 (1992), submitted that circumstantial evidence supported an inference of D and P's negligence. Such an assertion is without factual support in the record.

"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." Beal v. Board of Selectmen of Hingham, 419 Mass. 535, 539 (1995). Under Mass. R. Civ. P., Rule 56, the evidence to be reviewed by the motion judge includes "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. ..."

At approximately 4:30 a.m. on September 30, 1997, Arruda went shopping at the Stop and Shop Supermarket in New Bedford. As she was walking down one of the aisles towards the dairy cabinet, Arruda slipped and fell in a large accumulation of liquid. The accumulation, located at the end of the aisle near the dairy cabinet, was described as a "pool" of water with some depth to it. It extended from the end of the aisle to the dairy case at the back wall. Arruda saw no liquid on the floor before she fell, and so knew neither how long the liquid had been there nor its source.

At the time of the incident, D and P was under contract with Stop and Shop to provide "after-hours" floor-cleaning services, including washing, waxing, striping, finishing, and polishing the floors as needed. Under the contract, D and P was scheduled to work between 12:00 midnight and 8:00 a.m. The contract did not require D and P to keep the floors free from any debris or foreign substances.

Assuming without deciding that D and P, an independent contractor, owed a duty to the plaintiff, see Smith v. August A. Busch Co. of Massachusetts, Inc., 329 Mass. 615 (1953), the evidence is silent as to any nexus between Arruda's injuries and conduct of D and P. Arruda failed to establish that D and P caused the substance to be on the floor, that D and P had actual knowledge that the substance was on the floor, or that the substance was on the floor for such a length of time that D and P should have known about it. See Oliveri v. Massachusetts Bay Transportation Authority, 363 Mass. 165, 167 (1973). Further, there is no evidence to show that D and P washed the floor in the subject area prior to Arruda's fall, caused the area to become wet, was aware of the liquid in the area, or even that D and P was on the...