Gilhooley v. Star Market Co., Inc.

• Decision Date: 08 June 1987
• Citation: 400 Mass. 205,508 N.E.2d 609
• Parties: William A. GILHOOLEY v. STAR MARKET COMPANY, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 609

508 N.E.2d 609

400 Mass. 205

William A. GILHOOLEY v. STAR MARKET COMPANY, INC.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Nov. 7, 1986.

Decided June 8, 1987.

John P. McGloin, Lynn, for plaintiff.

Francis E. Sullivan, Natick, for defendant.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

In this tort action, the plaintiff alleges that, due to the defendant's negligence, he sustained personal injuries from slipping on a green pepper in the defendant's supermarket. By a special verdict, the jury found that the defendant had not been negligent. Accordingly, judgment entered for the defendant. On appeal to the Appeals Court, the plaintiff claimed that the judge's instructions to the jury were erroneous because they focused exclusively on the question whether the defendant reasonably should have discovered and removed the pepper before the plaintiff fell. The plaintiff claimed that, as a result, the judge's instructions erroneously "did not permit the jury to find the defendant negligent for the way in which it displayed and marketed its produce." The Appeals Court affirmed the judgment, Gilhooley v. Star Mkt. Co., 21 Mass.App.Ct. 1110, 488 N.E.2d 1205 (1986), and this court allowed the plaintiff's application for further appellate review. We, too, affirm the judgment for the defendant. The jury instructions were not erroneous.

We set forth the relevant portions of the jury instructions: "Under our law, the owner, occupant or lessee of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons who come thereon, to an unreasonable risk of harm.... Negligence is the failure to observe due care, to take due care that someone is not placed in a condition of unreasonable risk of harm. So that for definition, I will tell you that the law says that negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances, and negligence may consist of either doing something that a reasonably careful person would not do, or omitting to do something that a reasonably careful person would do.... Let me say to you this, that the mere unexplained presence of a foreign substance on the premises, and an accident occurring, does not, without more in and of itself establish negligence. If a substance is upon the floor of the defendant's premises, it is up to you to determine whether or not the defendant knew or should have known as to its presence. If he knew, the question is, did he make or did they make or take reasonable precaution to eliminate it. So if he could reasonably foresee its presence, did he take the necessary precautions, or did they take the necessary precautions to eliminate such an event."

At the conclusion of the instructions, the plaintiff objected to the failure of the judge to give certain instructions that the plaintiff had requested. The pertinent portions of the requested instructions are as follows: "You may find that the defendant was negligent for either or both of two grounds: (1) You may find that the defendant was negligent, if you find that the particular piece of produce on which the plaintiff slipped ... had been on the floor of the defendant's store long enough before the plaintiff slipped on it for the defendant's employees, in the exercise of ordinary care and vigilance, to have noticed it and removed it ... (2) You may find that the defendant is negligent if you find that the presence of produce on the floor of the defendant's produce department was a usual, ordinary and foreseeable result of the way in which the defendant conducted its produce business. Nelson v. Economy Grocery Stores Corp., 305 Mass. 383, 387, 25 N.E.2d 986 (1940).... The second ground does not depend...