Luz v. Stop & Shop, Inc. of Peabody

• Decision Date: 07 December 1964
• Citation: 202 N.E.2d 771,348 Mass. 198
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John F. LUZ v. STOP & SHOP, INC. OF PEABODY. Millicent H. GREENE v. STOP & SHOP, INC. OF PEABODY. Robert H. HARDY. v. STOP & SHOP, INC. OF PEABODY. Walter J. KWIECINSKI. v. STOP & SHOP, INC. OF PEABODY.

Page 771

202 N.E.2d 771

348 Mass. 198

John F. LUZ v. STOP & SHOP, INC. OF PEABODY.

Millicent H. GREENE v. STOP & SHOP, INC. OF PEABODY.

Robert H. HARDY. v. STOP & SHOP, INC. OF PEABODY.

Walter J. KWIECINSKI. v. STOP & SHOP, INC. OF PEABODY.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 8, 1964.

Decided Dec. 7, 1964.

John T. Ronan, Salem (Philip L. Sisk, Lynn, with him) for defendant.

Joseph J. Hurley, Boston, and John A. McNiff, Peabody (Samuel Pearl, Peabody, Anthony Serra, Boston, J. Newton Esdaile and Thomas E. Cargill, Jr., Boston, with them) for plaintiffs.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

REARDON, Justice.

These four actions of tort arose out of the same happening and were tried together with companion actions brought by the same plaintiffs against Ethel. J. and Carmen Bianco. The declarations, which are similar in the four cases now before us, allege that on June 26, 1958, the defendant's negligence in the operation and maintenance of premises under its control resulted in injuries to the plaintiffs. In each case, Stop & Shop, Inc. (Stop & Shop) answered with a general denial and an allegation of contributory negligence. In all except the Hardy case the further defence of assumption of the risk was pleaded. The jury returned a verdict in each of the four cases for the plaintiff. We consider the defendant's exceptions (1) to the denial of a motion for a directed verdict in each case, (2) to rulings of the trial judge regarding the admissibility of certain evidence, (3) to the closing argument for the plaintiff Luz, (4) to the denial of a motion for a new trial in each case, and (5) to the denial of requests for rulings which accompanied the motion for a new trial in the Luz case. In summary, the evidence most favorable to the plaintiffs is as follows.

The defendant opened a new super market in the North Shore Shopping Center in Peabody on June 25, 1958. The store was approximately 170 feet square. On the opening day there were 7,100 cash transactions. The sidewalk in front of the store was approximately sixteen feet in width from the front of the store to a six inch curbing. Above this sidewalk was a permanent canopy supported by seven stanchions or columns approximately twenty-three feet apart. Adjacent to the sidewalk was an access roadway between sixteen and twenty feet wide separated from the main roadway and parking area beyond by a raised island. Traffic in the access roadway ran one way in an easterly direction. At the east end of the front of the building were doors for entrance and exist.

In the operation of this self-service super market Stop & Shop provided about 500 carriages or carts each of which weighed twelve to fourteen pounds and had rear wheels larger than those in front. These carriages were used by customers to facilitate the transport of purchases.

The defendant operated a 'pickup' service on the sidewalk in front of the store. Stationed there on June 26, 1958, were some twelve to fifteen 'bundle boys' employed by the defendant. When a customer came through the exit door he would receive from an employee stationed in that vicinity one half of a numbered 'split tag' to be placed by the customer on the windshield of his car. The other half, bearing the same number, would be attached to the carriage containing his purchases. The customer would then drive his automobile from the parking area to the access way. Meanwhile, his carriage would be pushed to the pickup area which commenced at the third stanchion and extended westerly along the sidewalk to the seventh stanchion. As the customer entered the access way, Stop & Shop employees would note his number; it woudl be announced over a microphone, and the bundle boys would 'look for a like number on a carriage and have it ready when the customer pulled up.' If customers chose not to utilize the pickup service, they could 'walk their cart down to the parking lot, put their groceries in their cars and leave the carriages.' These carriages were returned to the store by a bundle boy who nested from ten to twenty or more of them together and pushed them across the access way to the sidewalk.

By 9 A.M. on June 25, 1958, the bundle boys had placed against the curb a plywood ramp which enabled them to push the nested carts from the access road up onto the sidewalk, two of the boys pushing from the rear and two in front guiding the carts. Later that day a heavier ramp approximately three feet wide and four feet long and sloping from the sidewalk to the street was placed in the access road. This second ramp was located opposite the exit door some six or eight feet from the second stanchion. Frequently, cars using the access way in departing the pickup area went over the ramps, causing them to shift away from the curbstone. The plaintiffs Luz and Kwiecinski observed this on numerous occasions. On both days the ramps were moved back against the curb by one or more of the bundle boys and by the plaintiff Kwiecinski 'a couple of times.'

A detail of seventeen Peabody police headed by Lieutenant Luz, and including Officer Kwiecinski, both of whom were on their day off from regular police duty, had been dispatched to the defendant's store at its request. Members of the detail learned of their assignment from a notice posted on the police station bulletin board. On the morning of June 25, the detail in uniform proceeded from the police station to the defendant's store, and Luz sought out the store manager for 'assistance' and 'authority.' Luz was told by the manager what was expected of the detail, and he then assigned his men to various positions for the ceremonies attendant on the opening of the store. After the manager had indicated what he 'thought should be done prior to the opening,' the police were 'pretty much on their own.' Luz was in general supervisory charge of the activities of the officers. Compensation for the service rendered by the police was transmitted by the defendant to the police station where it was subsequently distributed to each member of the detail.

At approximately 2 P.M. on June 26, 1958, a car struck the heavier ramp and moved it eight to twelve inches away from the curbing. The ramp remained in this position. At about 2:25 P.M. the plaintiff Kwiecinski was stationed inside the store near the entrance, about two feet from the front wall, while the plaintiff Luz was standing outside and to the 'side of the doorway.'

Ethel J. Bianco had come on that day to the Stop & Shop for groceries. The day was fair and clear, the road was dry, and visibility was good. Having completed her shopping she left the store with a carriage containing her bundles. She was given a split tag bearing the number eleven. She placed the tag on her car in the parking area and then drove to the pickup area. The car was equipped with a fluid drive type of transmission and power brakes and possessed no clutch. On the floor, about two inches apart and at the same level, were the brake and accelerator pedals. The rubber covering on the brake pedal was worn on the end closer to the accelerator pedal. At the end of the brake pedal was a small steel bar that extended out about three quarters of an inch on both sides. Between January and June, 1958, Mrs. Bianco had experienced no mechanical trouble with her car which had been driven 3,000 to 4,000 miles.

As Mrs. Bianco approached the access way she stopped at the end of a line of cars heading east with two or three cars ahead of her. A boy at the microphone who was wearing a white uniform said, 'Number 11, come to station one.' In response to this request she moved her car past the car in front of her and stopped alongside the car at station #2, near the third stanchion. At this time station #1 was vacant. A bundle boy had gone to the rear of her station wagon and opened the tail gate. Two other bundle boys on the sidewalk then told her to pull into the curb and not block traffic. They were 'hollering' at her. One boy was shouting, 'Go back, go back.' Other boys were saying, 'Pull in, pull in, don't stand there.' She was confused. Touching her foot lightly on the gas, she started forward, then cut her wheels towards the curb at an angle of forty-five degrees and came into the area near the ramps. She 'put * * * [her] foot on the brake to come in very slowly, and all of a sudden there was a bump.' Mrs. Bianco's foot slipped off the brake onto the accelerator. The car 'bounced over the ramp and * * * onto the sidewalk.' It picked up speed as it went across the sidewalk and continued into the end of the store, striking all four plaintiffs and inflicting a variety of personal injuries. These included the loss of a leg by the plaintiff Luz through a high amputation. The car came to rest with a part of the inside the store.

1. It is contended by Stop & Shop that the placement of the ramp in the access roadway and its presence there for a prolonged period violated no duty to the plaintiffs. The defendant emphasizes that the ramp was a proper accessory related to business purposes; that it was open and obvious to the plaintiffs; that the plaintiff police officers saw cars strike the ramp, causing it to shift away from the curb on numerous occasions but took no action; and that the plaintiff Kwiecinski moved the ramp back against the curb 'a couple of times.' The thrust of the defendant's argument is that no risk of harm from the conditions described was reasonably foreseeable by it; hence the trial judge should have granted the motion for a directed verdict in each case.

As to any invitee Stop & Shop owed the duty of ordinary care and diligence to maintain its premises in a reasonably safe condition. Brooks v. Sears, Roebuck & Co., 302 Mass. 184, 186, 19 N.E.2d 39. What constitutes the required care and diligence is a question of fact. Campbell v. Boston, 189 Mass. 7, 10, 75 N.E. 96. Only where no view of the evidence could...