O'Leary v. Jacob Miller Co.

• Decision Date: 17 January 1985
• Citation: 19 Mass.App.Ct. 947,473 N.E.2d 200
• Parties: Mary E. O'LEARY v. JACOB MILLER COMPANY.
• Court: Appeals Court of Massachusetts

Page 200

473 N.E.2d 200

19 Mass.App.Ct. 947

Mary E. O'LEARY v. JACOB MILLER COMPANY.

Appeals Court of Massachusetts,

Middlesex.

Argued Dec. 14, 1984.

Decided Jan. 17, 1985.

Leo J. Dunn, III, Wellesley, for plaintiff.

D. Alice Olsen, Boston, for defendant.

Before KASS, CUTTER and FINE, JJ.

RESCRIPT.

Mary E. O'Leary, an elderly woman, fell and hurt herself on a carpeted step in Walter's, the defendant's restaurant in Brookline. After a trial in the Superior Court on O'Leary's complaint that the defendant was negligent, the jury returned a verdict for the defendant. In this appeal, O'Leary claims that the trial judge erred in not admitting evidence of prior accidents at the same spot and in failing to instruct the jury as to the relationship between O'Leary's age and the required standard of care. We agree with the contention that there was error in the instructions, and we, therefore, reverse.

There was evidence that the plaintiff and her luncheon companions were elderly and that elderly people comprised a substantial portion of the restaurant's clientele. O'Leary asked that the judge in his instructions to the jury refer specifically to the age of the clientele. All that was said to the jury with regard to the defendant's liability was as follows:

"It is incumbent upon the plaintiff here to prove by a fair preponderance of the credible evidence and any reasonable inferences that may be drawn therefrom that the defendant was negligent.

"The defendant has a duty to keep its premises in a reasonably safe condition; and, if you find that the plaintiff has prove[d] that the defendant failed to keep its premises in a reasonably safe condition, that it knew or should have known that they weren't and had ample opportunity to do something about it and did not, then you may find that the plaintiff has prove[d] that the defendant is negligent."

Although the judge could properly have given the requested instruction, he may not have been required to do so. At a minimum, however, he was required to refer generally to the attendant circumstances in explaining negligence to the jury. In other words, he should have indicated in some way to the jury that negligence is the failure to exercise that degree of care which is reasonable in the circumstances. See Upham v. Chateau de Ville Dinner Theatre, Inc., 380 Mass. 350, 403 N.E.2d 384 (1980); Mounsey v. Ellard, 363 Mass. 693, 707-709, 297 N.E.2d 43 (1973); Restatement (Second) of Torts § 283 (1965). Virtually all recommended jury instructions for negligence cases include in the formulation some reference to the circumstances. See e.g., 4 Branson, The Law of Instructions to Juries § 2323, at 378-379 (1962 revision), quoting from Bagley v. Kimball, 268 Mass. 440, 167 N.E. 661 (1929); Prosser, Torts § 37, at 237 n. 12 (5th ed. 1984); Fifth Circuit District Judges Assoc., Pattern Jury Instructions (Civil Cases) 108 (1980). By referring to the...