Flood v. Southland Corp., 91-P-440

• Decision Date: 15 September 1992
• Docket Number: No. 91-P-440,91-P-440
• Citation: 33 Mass.App.Ct. 287,601 N.E.2d 23
• Court: Appeals Court of Massachusetts
• Parties: David FLOOD v. SOUTHLAND CORPORATION & another. 1

Page 23

601 N.E.2d 23

33 Mass.App.Ct. 287

David FLOOD v. SOUTHLAND CORPORATION & another. ¹

No. 91-P-440.

Appeals Court of Massachusetts Middlesex.

Argued June 8, 1992.

Decided Sept. 15, 1992.

Thomas D. Burns, Boston (John J. McGivney, with him), for Southland Corp.

Edward M. Swartz, Boston (Alan L. Cantor, with him), for plaintiff.

Present: WARNER, C.J., and GILLERMAN and IRELAND, JJ.

WARNER, Chief Justice.

Shortly after midnight on August 31, 1979, the plaintiff, David Flood, then sixteen years old, was stabbed in the heart by his friend, the defendant John Darcy, then seventeen years old, outside a 7-Eleven store in Wakefield owned and operated by the defendant Southland Corporation (Southland). As a result of his injuries, Flood is legally blind, confined to a wheelchair, permanently and totally disabled and dependent on custodial care for the rest of his life; at the time of trial, his life expectancy was forty-seven years.

1. The incident. On the night of August 30, 1979, Flood and Darcy attended a party where they drank substantial quantities of beer, and Darcy smoked marijuana. Flood and Darcy usually carried knives, as did most of the youths with whom they associated. At the party, Darcy carried a buck knife in a sheath attached to his belt; he left the knife at the party. Later, around midnight, Darcy met Flood and two other friends on the street, and the four proceeded to the 7-Eleven store, a frequent gathering place for them and other youths in the neighborhood.

There was one person on duty in the store, Thomas Conomackos, the night manager. As the four boys entered the store, Conomackos thought they were "high" on alcohol or drugs. They fanned out, and he suspected they might be trying to steal something. Darcy purchased a sandwich, the others made purchases, and all then went outside without incident. They remained on Southland's premises. A short time later, Darcy came back into the store and complained (cursing) to Conomackos about his sandwich and asked for his money back. Conomackos refused, since the sandwich was partially eaten, and told Darcy to leave the store, and Darcy did. Thereafter, Flood entered the store, told Conomackos that Darcy was upset and had a knife out and warned Conomackos to be careful. Conomackos told Flood to tell Darcy not to be stupid or to do anything foolish and assured Flood that he, Conomackos, could take care of himself. Flood left and went to where the youths had congregated outside the store, an area not visible from inside the store but on Southland's premises.

A short time later, Darcy and Flood began to scuffle. Flood showed the knife Darcy had left at the party, and Darcy wrestled it from him. The two appeared to witnesses to be engaged in "horseplay." Then Flood, who was of larger build than Darcy, pinned Darcy against a wall with a forearm against Darcy's neck. Flood told Darcy that he was going to hit him, and Darcy responded, "You hit me and I'll stab you." Darcy repeated the statement, Flood paused and then lightly slapped Darcy on the face with an open hand. Darcy then stabbed Flood in the heart. Darcy testified that he did not believe that Flood was going to hit him, and he did not intend to stab Flood; Darcy did not know the knife was open; "I never even knew that I did it, except I knew it was done." About ten to twelve minutes after Flood had left the store, Conomackos was told of the stabbing. The police were called, and they arrived within five minutes.

2. Some procedural background. As a result of the stabbing, Darcy was indicted for assault and battery with a dangerous weapon (G.L. c. 265, § 15A) and armed assault with intent to murder (G.L. c. 265, § 18). He pleaded guilty to both charges and was sentenced to the Massachusetts Correctional Institution at Concord for ten years. On October 31, 1980, Flood commenced a civil action in the Superior Court against Darcy, claiming that Darcy's negligence caused his injuries. The complaint also contained counts against Darcy's parents for negligent supervision and, under G.L. c. 231, § 85G, for Darcy's "willful act in holding and using a knife in such a manner as to cause injury to David Flood."

Flood amended the complaint on December 2, 1981, adding counts in negligence against Southland and Federal Real Estate Trust, the owner and lessor of the property. The count against Federal Real Estate Trust was dismissed by summary judgment in August of 1984. On May 15, 1989, the parties filed a joint pretrial memorandum. Among the issues of fact and law which all parties agreed were to be determined at trial were whether (1) Flood, Darcy and Southland were negligent, (2) Flood's negligence was greater than the combined negligence of Darcy and Southland, (3) Darcy's acts were intentional, and (4) Flood's negligence was greater than any negligence of Southland.

The case proceeded to trial before a jury. On October 2, 1989, the first day of trial, Flood filed a second amended complaint, adding claims for nuisance against Southland, and dropping all claims against Darcy's parents, including the claim that Darcy's conduct had been "willful." Although Darcy had offered to settle, Flood's counsel told the judge that for tactical reasons, under the comparative negligence statute, he could not let Darcy out of the case. Southland opposed the amendment and argued that Flood was attempting to remove from the case the issue whether Darcy's conduct had been intentional. Darcy's counsel assured the judge that the issue of intentional tort, which he recognized as the core of Southland's defense, would be litigated. The amendment was allowed.

Southland filed its answer to Flood's second amended complaint on October 6, 1989. In answer to Flood's claim of negligence against Darcy, Southland denied that Darcy's act was negligent and claimed that it was an intentional battery. Southland also made a cross-claim for indemnity or contribution against Darcy based in part on the allegation that Flood's injuries "were caused in whole or in part by the intentional act of Darcy in committing a battery upon Flood." Darcy's counsel, who had admitted Darcy's negligence, opposed the addition of the cross-claim on the grounds that until that point there had been no claim that Darcy's act was intentional (that was incorrect) and that the addition of the claim several days into the trial would require a change of trial strategy. Flood's counsel opposed the filing of the cross-claim on the grounds that the addition of the cross-claim was prejudicial and would change the nature and complexion of the case. From his point of strategy, as will be seen, that was correct. The judge refused to allow the cross-claim to be filed.

On October 12, 1989, the case was submitted to the jury on special questions. See Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). Significantly, the jury were not asked to consider whether Darcy's conduct was intentional, apparently because the judge concluded there was no evidence that the stabbing was an intentional act and because she accepted Flood's and Darcy's arguments that battery was not an element of any party's case. The jury found that the negligence of each of the parties proximately caused Flood's injuries. Negligence was apportioned twenty-five percent to Flood, seventy percent to Darcy and five percent to Southland. The jury found for Southland on the nuisance count. Flood's damages were determined to be $1,763,000 (reduced to $1,322,250 on account of Flood's negligence). Statutory interest at the time of the judgment was $1,421,418.70.

Southland's motions for directed verdicts at the close of the plaintiff's case and after all of the evidence were denied, as were its motions for judgment notwithstanding the verdict and for a new trial. Southland appealed from the judgment and the denial of its motions.

3. The plaintiff's case against Southland. The focus of the trial was on the issue of Southland's negligence. Flood claimed that Southland was negligent for failing to provide adequate security and failing to take adequate precautions to protect the safety of its patrons and customers. At the time of the incident, Southland was one of the largest twenty-four hour convenience store operators in the country. Flood introduced in evidence numerous internal documents of Southland concerning security and loss prevention due to robbery. Included in the robbery prevention material designed for employees was a directive that clerks "know what's happening outside the store."

Flood introduced the deposition testimony of Robert Quigley, Southland's northeast division loss prevention manager. Quigley said that it was Southland's standard to do everything possible to insure the safety of all people who either worked or shopped at their 7-Eleven stores. Quigley testified that Southland was concerned about gang unruliness as well as robbery. He stated that from the point of view of safety it was important that the store clerk have a clear view outside the store.

Flood also introduced the testimony of a security expert, Paul Corbett. Corbett testified that the design of the Wakefield 7-Eleven was inadequate because there was a blind spot which blocked the clerk's view of activity outside the front of the store. It was Corbett's opinion that there was a "negligent situation" at the Wakefield 7-Eleven because the store personnel were not adequately trained in security and the store lacked security officers and security hardware such as closed-circuit television and direct alarm systems to a central station or the police. Corbett also testified that Conomackos should have called the police when he noticed that the boys were intoxicated and presented an inflammatory situation. He should have been aware of the activities outside the store, and he should have called the police when he learned that Darcy had a knife.

Wakefield police reports were introduced showing that between January 1, 1978, and ...