Thurlow v. Shaw's Supermarkets
| Citation | 727 N.E.2d 532 |
| Decision Date | 27 April 2000 |
| Docket Number | No. 98-P-255,98-P-255 |
| Parties | (Mass. 2000) CAROLYN L. THURLOW & another <A HREF="#fr1-1" name="fn1-1">1 v. SHAW'S SUPERMARKETS, INC |
| Court | United States State Supreme Judicial Court of Massachusetts |
Negligence, Grocery store, Hazardous substance. Notice.
Civil action commenced in the Superior Court Department on December 23, 1991.
The case was heard by Richard E. Welch III, J.
Jonathan Braverman for the defendant.
Daniel T. Bowie for the plaintiffs.
In brief outline: The plaintiff, Carolyn L. Thurlow, appeared at about 11:45 P.M. on August 9, 1990, at the deli counter of the defendant Shaw's Supermarket intending to proceed from there to the dairy section to purchase some milk. As she crossed in front of the fish department, she slipped and fell on a water-soaked rug in a puddle in front of a display case.2That mishap caused a meniscal cartilage injury to her left knee and a shoulder strain.
The display case was a twelve-foot wide nonrefrigerated unit in which various fish products lay in a bed of ice. Attached to the front of the case was an "extender," a smaller shelf or tray that protruded about one and one-half feet from the edge. Products placed inside the extender were also on ice. There was evidence that the fish case was filled with ice in the morning and that ice was replaced two or three times each day. There was no problem, i.e., no leak or unexpected drainage, but on occasion the store manager would observe ice on the floor in the vicinity of the fish case or extender. Thurlow left the store under the impression that she had not sustained any serious injury and assured a store employee who had seen her fall that she was fine. By the next morning, her condition had worsened. She reported the matter to the store manager five days later. Upon a bench trial, a Superior Court judge found in her favor and awarded $42,000 in damages. The issues presented on appeal are whether the evidence was sufficient to support the judge's finding that the defendant was negligent and whether the damage award was consistent with the judge's findings of fact.
One who controls business premises has an obligation "to use due care to keep the premises provided for the use of its patrons in a reasonably safe condition, or at least to warn them of any dangers that might arise from such use, which are not likely to be known to them, and of which the defendant knows or ought to know." Oliveri v. Massachusetts Bay Transp. Authy., 363 Mass. 165, 167 (1973). Any foreign substance, if unexpectedly encountered by a customer or other invitee on a floor, step, or walkway, can constitute a risk for purposes of imposing liability. The cases are legion. For a representative sampling of substances most often encountered in slip and fall litigation, see Landau, Premises Liability Law and Practice § 8A.100 (1999). Where water has accumulated on the floor of a business establishment as a result of improper supervision, its presence may constitute an unreasonably hazardous condition. See, e.g., Baggs v. Chatham County Hosp. Authy., 187 Ga. App. 834, 836 (1988); Knowles v. Klase, 204 Kan. 156, 159 (1969).
To a large extent, liability depends upon the "opportunity for discovery open to the defendant's employees by reason of their number, their physical proximity to the condition in question, and, in general, the likelihood that they would become aware of the condition in the normal performance of their duties." Deagle v. Great Atl. & Pac. Tea Co., 343 Mass. 263, 265 (1961). Liability will only attach if the plaintiff establishes by a preponderance of the evidence that the foreign substance was there long enough that the defendant's employees should have seen it and cleaned it up. See Welch v. Angelo's Supermarket, Inc., 27 Mass. App. Ct. 1106, 1106 (1989).
Here, the defendant makes a plausible argument that store employees could not have known of the melting ice or had an opportunity to remove accumulated water. In particular, the defendant points to the lack of evidence that the display case or extender tray drains were malfunctioning. Nor, the argument goes, could its employees anticipate from past experience that small quantities of ice occasionally dropping from the case and melting on the floor might cause injury.
We conclude, however, that the judge's detailed findings, dictated at the conclusion of the trial, are sufficient to establish liability. Appellate courts may not disregard or set aside a trial judge's findings unless they are clearly erroneous. See Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). Appellate review of the facts found at a bench trial does not permit the weighing of the evidence anew. See Capitol Bank & Trust Co. v. Richman, 19 Mass. App. Ct. 515, 519 (1985); Spartichino v. Commissioner of the Metropolitan Dist. Commn., 24 Mass. App. Ct. 965, 965 (1987).
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...on a floor, step, or walkway, can constitute a risk for purposes of imposing liability [for negligence]." Thurlow v. Shaw's Supermkts., Inc., 727 N.E.2d 532, 534 (Mass. App. Ct. 2000). "The plaintiff must identify the hazardous condition that caused [her] to slip, [and] prove that it was pr......
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Morrison v. Yum! Brands, Inc.
...was there long enough that the defendant's employees should have seen it and cleaned it up.” Thurlow v. Shaw's Supermarkets, Inc., 49 Mass.App.Ct. 175, 176–77, 727 N.E.2d 532 (2000). At the very least, plaintiff has submitted no evidence as to how long the puddle existed, and therefore, no ......
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Morrison v. Yum! Brands, Inc.
...was there long enough that the defendant's employees should have seen it and cleaned it up.” Thurlow v. Shaw's Supermarkets, Inc., 49 Mass.App.Ct. 175, 176–77, 727 N.E.2d 532 (2000). At the very least, plaintiff has submitted no evidence as to how long the puddle existed, and therefore, no ......