Gallagher v. Stop & Shop, Inc.
| Decision Date | 28 April 1955 |
| Citation | 126 N.E.2d 190,332 Mass. 560 |
| Parties | Murray J. GALLAGHER v. STOP & SHOP, Inc. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert P. O'Reilly, Boston, for plaintiff.
W. Lloyd Allen, Boston, for defendant.
Before QUA, C. J., and RONAN, WILKINS and COUNIHAN, JJ.
The plaintiff, a business visitor, was hurt when he slipped and fell on the floor of the defendant's store. Pursuant to court order the plaintiff specified that the defendant was negligent in that it 'permitted the remnants of a melted ice cream cone to remain an unreasonable length of time on its premises in a place where the defendant knew its customers had to walk; thereby causing a danger to its customers.' The judge denied a motion of the defendant that a verdict be directed for it, and the correctness of that ruling is the only question presented by the defendant's bill of exceptions. We are of opinion that there was no error.
The evidence in its aspects most favorable to the plaintiff may be summarized as follows: The plaintiff at or about 4 P.M. on July 11, 1951, entered a store of the defendant on Harvard Avenue, Allston, and made some purchase. He was in the store about thirty minutes. As one faces the front of the store from the street the entrance and exit doors are in a recessed area making an open vestibule with the entrance on the right and the exit on the left. When he entered the store and as he was about to leave, the exit door was wide open. When he crossed the vestibule to enter he saw no ice cream on the threshold of the exit door or on the floor of the store or the vestibule. Near the exit there were three booths or counters, each with a cashier and a cash register, where customers paid for their purchases. On each side of these counters were aisles, through one of which the customer walked and in the other a cashier stood with her back to the exit. Adjacent to each counter and to the rear of the cashier there was a receptacle containing shopping bags for sale. To make a sale of these bags the cashier was required to turn around so that she faced the exit which gave her a clear view of the floor at the door, the threshold, and the vestibule. It was 'not unusual for her to reach for such a shopping bag * * * she did that all day.'
The plaintiff on the way out went to the first counter, the front of which was about seven feet from the exit, and paid for his purchases. He started to leave when 'all at once my feet went up and I was down on my back.' He fell on the threshold and his body was lying partly on the threshold and partly on the floor of the vestibule. There was 'messy, sloppy, dirty ice cream all over the place,' some on the threshold, some in the vestibule, and some on the floor inside the store. The size of the ice cream was twelve inches in circumference and it 'was very dirty, sloppy and all broken up, the cone was all broken up in the dirty ice cream and was sloppy and messy.' There were 'a few rivulets running down the threshold four or five feet out to the sidwalk down the crevices in the surface of the floor of the outside vestibule--the ice cream was dribbling down.' There were 'quite a few heel marks leading from the ice cream.' Prior to the day of the accident the plaintiff had observed from a position where the cashier stood, the entrance and exit area including the threshold. It was a sunshiny summer day but at the time of the accident the front of the store was in the shade. Except for the cashiers there were no other employees of the defendant in that part of the store. One of the cashiers saw the plaintiff on the floor. There was no evidence that the defendant sold ice cream cones in this store.
There is no evidence that the ice cream was there through the acts of any persons for whose conduct the defendant was responsible. Jennings v. First National Stores, Inc., 295 Mass. 117, 3 N.E.2d 179. Likewise there was no evidence that the defendant or any of its employees knew of the presence of this ice cream. See Corriera v. Atlantic Amusement Co., Inc., 302 Mass. 81, 18 N.E.2d 435.
The plaintiff's right to recover therefore depends upon evidence from which the jury could find that the defendant, in the exercise of reasonable care, should have known of and removed...
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...the existence of the dangerous condition, sufficient to allow time for the owner to remedy the condition. Gallagher v. Stop & Shop, Inc., 332 Mass. 560, 563, 126 N.E.2d 190 (1955). See Toubiana v. Priestly, 402 Mass. 84, 87-88, 520 N.E.2d 1307 (1988). In determining whether an owner has act......
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...an exit door and several of the defendant's employees work near the door, an inference of negligence is warranted. Gallagher v. Stop & Shop, Inc.,332 Mass. 560, 126 N.E.2d 190. See Foley v. F. W. Woolworth Co., 293 Mass. 232, 234, 199 N.E.2d 739. Compare Caro v. F. W. Woolworth Co., 342 Mas......
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...because she cannot show that Agway had sufficient time to become aware of and remedy the condition. See Gallagher v. Stop & Shop, Inc., 332 Mass. 560, 563, 126 N.E.2d 190 (1955). Bowers argues, however, that her claim should be viewed under the mode of operation approach, and that, under su......