Swann v. Flatley

Decision Date06 November 1990
Docket NumberCiv. A. No. 89-1348-WD.
Citation749 F. Supp. 338
PartiesAllen SWANN, et al., Plaintiffs, v. Thomas J. FLATLEY, d/b/a The Flatley Company, Defendant.
CourtU.S. District Court — District of Massachusetts

Daniel J. O'Connell, III, Boston, Mass., for plaintiffs.

John J. Lang, Driscoll, Gillespie, Stanton & Davis, Lynnfield, Mass., for defendant.


LAWRENCE P. COHEN, United States Magistrate.

This is a slip and fall case brought within the diversity jurisdiction of this court. Plaintiff Allen Swann slipped and fell while exiting from the Sheraton Tara Hotel in Framingham on December 20, 1987, receiving substantial injuries.1 Defendant Thomas J. Flatley, d/b/a The Flatley Company, in its answers, concedes that the Sheraton Tara Hotel was in its custody, possession and control at the time of the accident. All parties consented to jury trial before this court pursuant to the provisions of 28 U.S.C. § 636(c) and Rule 4(c) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts.

A. The Factual Context

1. At the final pretrial conference, it appeared from the joint pretrial memorandum filed by the respective parties, as well as from the position of the parties at that conference, that the plaintiff slipped and fell on account of a natural accumulation of ice and/or snow upon exiting from the side door of the Sheraton Tara Hotel. At that conference, this court advised the parties that the United States Court of Appeals for this Circuit had recently canvassed Massachusetts law,2 and had apparently concluded that, under Massachusetts law, a landowner was not under a duty to remove natural accumulations of ice and/or snow.3

Trial was scheduled for November 5, 1990. During the course of a chambers conference immediately prior to empanelling a jury, it still appeared that plaintiffs' case rested on the assumption that Massachusetts law permitted recovery on the basis of a landowner's failure to remove a natural accumulation of snow and/or ice. Plaintiff maintained, however, that, particularly in light of the holding in Klein v. Boston Elevated Ry., 293 Mass. 238, 200 N.E. 6 (1936), the Athas Athas v. United States, 904 F.2d 79 (1st Cir.1990) court misconstrued applicable Massachusetts law.

A jury was empaneled, and plaintiffs made their opening statement. Based on that opening statement — which again relied exclusively on the failure of the defendant to remove a natural accumulation of ice — the defendant moved for a directed verdict. This court denied that motion without prejudice to renewal. This court conditioned the denial of the motion, however, on the directive that plaintiff introduce all evidence relating to liability exclusive of evidence dealing with damages, at which time this court would reconsider the motion for a directed verdict.

2. Consistent with the court's directive, plaintiffs presented all evidence bearing on the question of liability. Without exception, all of plaintiffs' evidence allowed but one reasonable conclusion — i.e., that plaintiff Allen Swann slipped on the platform just outside the side exit door on account of freezing rain which had resulted in a sheet of ice on that platform. Additionally, all witnesses who testified and who could recall, testified that the precipitation continued at the time of the accident — indeed throughout the remainder of the day.4

3. Plaintiffs having represented that all evidence had been presented on the matter of liability, this court revisited defendant's motion for a directed verdict.5 Upon consideration of the evidence and argument of counsel, the defendant's motion for a directed verdict is allowed, and judgment shall enter for the defendant on all claims.6

B. Discussion

In Athas v. United States, 904 F.2d 79 (1st Cir.1990), decided on May 1, 1990, the United States Court of Appeals for the First Circuit, after canvassing relevant Massachusetts law, concluded that a landowner is not under a legal duty to remove natural accumulations of ice and/or snow. In this court's view, notwithstanding plaintiffs' argument that the Court of Appeals misconstrued current Massachusetts law, the Athas Court correctly concluded that, under Massachusetts law, a landowner is not under a legal duty to remove natural accumulations of ice or snow.7

The Court of Appeals' interpretation of the current law is consistent with hoary precedent bottomed in the common law of Massachusetts. Indeed, it has invariably been referred to as the Massachusetts rule.8 Thus, in Young v. Saroukos, 5 Storey 149, 55 Del. 149, 185 A.2d 274 (1962), the court observed —

Judge Stiftel pointed out in Whalen v. Zolper, 1 Storey 519, 148 A.2d 778 (1959) (1 Storey at 521, 148 A.2d at 780):
"The authorities in this country on the question of whether or not there is a duty on the part of the landlord who has rented a building to several tenants to remove natural accumulations of ice or snow in certain areas such as on porches and steps used in common are not in harmony. The cases on the subject are collected in 25 A.L.R. 1273; 39 A.L.R. 294; 58 A.L.R. 1411; 75 A.L.R. 154; 97 A.L.R. 220, and more recently, in 26 A.L.R.2d 610. From an examination of certain treatises and of the cases cited in the above A.L.R. notes, it appears that the authorities are primarily divided between the common-law Massachusetts rule and the so-called Connecticut rule. Durkin v. Lewitz, 3 Ill.App.2d 481, 123 N.E.2d 151, 155, 156 (1954). The Massachusetts rule holds that the relation of landlord and tenant does not impose upon the landlord a duty to remove from common areas under his control ice or snow naturally accumulating there. Bell v. Siegel, 242 Mass. 380, 136 N.E. 109, 25 A.L.R. 1261 (1922); Woods v. Naumkeag Steam Cotton Co., 134 Mass. 357 (1883); 2 Stevenson on Negligence in the Atlantic States (1954 ed.), Sec. 513. The Connecticut rule as stated in Reardon v. Shimelman, 102 Conn. 383, 128 A. 705, 707, 39 A.L.R. 287 (1925), imposes upon the landlord a liability for injuries due to the accumulation of ice or snow, provided he knew or ought to have known of the existence of the dangerous condition existing and failed to exercise reasonable care to provide against the injury because of it. The landlord has the duty to use reasonable care to see to it that the premises are kept safe. Sheehan v. Sette, 130 Conn. 295, 33 A.2d 327, 328 (1943).
"The basic difference between the two rules is that under the Massachusetts line of cases, an adherence to the common-law conception of the duty of a landlord is followed, and snow and ice are understood to be temporary obstructions for which a landlord is not held liable, and the Connecticut line of cases follows the more modern approach requiring the landlord to use reasonable care with respect to premises used in common, including the removal of ice and snow. Durkin v. Lewitz, supra, 123 N.E.2d at page 156." (Emphasis in text added).

Nothing in the authorities brought to the attention of this court by plaintiffsi.e., intriligator v. City of Boston, 18 Mass. App. 703, 469 N.E.2d 1296 (1984); Willett v. Pilotte, 329 Mass. 610, 109 N.E.2d 840 (1953); Phipps v. Aptucxet Post # 5988 V.F.W. Building Ass'n, Inc., 7 Mass.App. 928, 389 N.E.2d 1042 (1979); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 (1973); Klein v. Boston Elevated Ry., 293 Mass. 238, 200 N.E. 6 (1936); and Jakobsen v. Massachusetts Port Authority, 520 F.2d 810 (1st Cir.1975) — persuades this court to conclude that our Court of Appeals, in Athas, misconstrued controlling Massachusetts law. The holdings in Intriligator, Mounsey, Phipps, and Jakobsen, were specifically addressed and referred to in the course of the Athas decision. Those holdings notwithstanding, particularly in view of the fact that none of those cases specifically focussed upon the distinction of natural accumulations of ice and/or snow, the Athas Court specifically concluded that "Since the traditional rule in Massachusetts is that a landowner's liability for injuries incurred on his premises depends, inter alia, on the existence of a defect or hazard other than a natural accumulation of water, or ice, or snow, that is the rule we must apply until the Massachusetts courts decide differently." (Emphasis added). With respect to Willett, supra, that Court simply did not address the distinction, and was not called upon to do so. So too with Klein. The issue was not raised, and accordingly was not decided. Moreover, the holding in Klein can be squared with the holding in Athas9 on the basis that a common carrier, as was the case in Klein, is, under traditional Massachusetts law, held to a higher standard of care than that imposed on other landowners. See Sharpe v. Peter Pan Bus Lines, Inc., 401 Mass. 788, 519 N.E.2d 1341, 134310 and n. 5 (1988).

Moreover, in terms of the facts specific to this case, one holding of the Massachusetts Supreme Judicial Court specifically reinforces this court's view that the rationale of Athas, supra, specifically applies to this case. In a rescript opinion entered by the Massachusetts Supreme Judicial Court, that court observed Sirk v. Plante, 349 Mass. 770, 211 N.E.2d 341 (1965)

In this action of tort the plaintiff, a United States letter carrier, seeks to recover for injuries sustained by him on premises owned and controlled by the defendant. There was testimony that on December 18, 1961, at about 9 A.M., the plaintiff was delivering mail to the defendant's premises. It had snowed that morning and there were about three inches of snow and ice frozen on the front stairway at the time. After the plaintiff delivered the mail and while descending the stairway he slipped and fell on snow and ice which covered the stairway. Snow and freezing rain were falling at the time. There was no error in directing a verdict for the defendant

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