Wexler v. Stanetsky Memorial Chapel of Brookline, Inc.

• Decision Date: 07 January 1975
• Parties: Mary M. WEXLER v. STANETSKY MEMORIAL CHAPEL OF BROOKLINE, INC.
• Court: Appeals Court of Massachusetts

Page 686

321 N.E.2d 686

2 Mass.App.Ct. 750

Mary M. WEXLER v. STANETSKY MEMORIAL CHAPEL OF BROOKLINE, INC.

Appeals Court of Massachusetts, Suffolk.

Argued April 11, 1974.

Decided Jan. 7, 1975.

Robert L. Farrell, Boston (Philander S. Ratzkoff, Boston, with him), for defendant.

Harvey M. Forman, Boston, for plaintiff.

Before HALE, C.J., and KEVILLE and ARMSTRONG, JJ.

KEVILLE, Justice.

This is an action of tort in which the plaintiff seeks to recover for personal injuries suffered when she slipped and fell on the lobby floor of the defendant's funeral home. At the close of the plaintiff's evidence the defendant rested and moved for a directed verdict. The trial judge denied this motion, and, after the return of a verdict for the plaintiff, also denied the defendant's motion for the entry of judgment under leave reserved. The case is here on the defendant's exceptions to the denial of both motions.

The facts are summarized in their aspect most favorable to the plaintiff. On December 22, 1970, at about 12:30 P.M., the plaintiff, aged seventy, arrived at the defendant's funeral home in order to attend the funeral of a neighbor's father at 1:00 P.M. Snow had been falling for an hour or two. The plaintiff entered the funeral home lobby through a covered entranceway. She stepped upon a small carpet located just inside the door. She took one step off the carpet and fell. What has been variously described as a 'puddle or pool of dirty water' and an area of 'wetness' which was 'between three and four feet in length and width' covered the marble floor at the spot where she fell.

A half hour before she arrived, a smaller pool of relatively clear water, apparently tracked into the lobby by people entering the funeral home, had been observed at the same spot. An employee of the defendant was seen near it. The area of wetness grew in size and became more muddy as a number of people entered the building in the half hour before the plaintiff arrived.

In our view this is a case in which 'the transitory conditions of (the) premises, due to normal use in wet weather, according to ordinary experience could not in reason have been prevented.' Lanagan v. Jordan Marsh Co., 324 Mass. 540, 542, 87 N.E.2d 215, 216 (1949). See Tariff v. S. S. Kresge Co., 299 Mass. 129, 130, 12 N.E.2d 79 (1937); Moors v. Boston Elev. Ry., 305 Mass. 81, 82--83, 25 N.E.2d 171 (1940); Policronis v. Jordan Marsh Co., 333 Mass. 767, 129 N.E.2d 913 (1955); Faulkner v. J. H. Corcoran & Co., Inc., 342 Mass. 94, 95--96, 172 N.E.2d 94 (1961). Compare LOWE V. NATIONAL SHAWMUT BANK, --- MASS. ---, 292 N.E.2D 683 (1973)^A. There was no evidence to indicate that the water on the floor was more than 'inevitably results from the tramping of many feet in such a place . . . under the conditions of weather then existing' (Moors v. Boston Elev. Ry., supra, 305 Mass. at 82, 25 N.E.2d at 172; Faulkner v. J. H. Corcoran & Co. Inc., supra, 342 Mass. at 96, 172 N.E.2d 94), or that it was of unusual depth or extent (Grace v. Jordan Marsh Co., 317 Mass. 632, 633, 59 N.E.2d 283 (1945)). We can infer from the flatness of the floor, as shown in a picture of the lobby, that any deposit of water on it 'must have been thin and perhaps not much more than a film.' Leary v. Jordan Marsh Co., 322 Mass. 309, 310, 77 N.E.2d 219, 220 (1948). Contrast Correira v. Atlantic Amusement Co. Inc., 302 Mass. 81, 82, 18 N.E.2d 435 (1938). Also, there was no evidence that the floor, for any reason, became peculiarly slippery when wet (Moors v. Boston Elev. Ry., supra; Faulkner v. J. H. Corcoran & Co. Inc., supra, 342 Mass. at 95, 172 N.E.2d 94; contrast Corrieira v. Atlantic Amusement Co. Inc., supra) and we cannot take judicial notice that a marble floor such as this one becomes dangerously slippery when wet. Faulkner v. J. H. Corcoran & Co. Inc., supra, 342 Mass. at 95--96, 172 N.E.2d 94.

Since in the circumstances here disclosed, it would have been impractical to keep the lobby floor dry, our conclusion is not affected by the fact that here, unlike in Tariff v. S. S. Kresge Co., supra, and Moors v. Boston Elev. Ry., supra, there was evidence that water had been on the lobby floor for at least a half hour. See Policronis v. Jordan Marsh Co., supra.

We have not been directed to nor have we found authority to support the plaintiff's contention that the owner of a funeral home, whose invitees may arrive intermittently, should for that reason be held to a higher standard of care than, for example, that required to be exercised by a public transportation system or a department store toward its invitees. Such cases as Moors v. Boston Elev. Ry., supra, and Faulkner v. J. H. Corcoran & Co. Inc., supra, are not distinguishable on that ground. The cases cited by the plaintiff involving falls on snow or ice, including Watts v. Rhodes, 325 Mass. 697, 91 N.E.2d 925 (1950) and Thornton v. First Natl. Stores, Inc., 340 Mass. 222, 224, 163 N.E.2d 264 (1960), are distinguishable from the present case. See Lanagan v. Jordan Marsh Co., 324 Mass. at 541--542, 87 N.E.2d 215. To the extent that cases cited by the plaintiff from other jurisdictions lead toward a result different from that reached by us, we do not follow them. ¹

Finally, the plaintiff asserts that a funeral home operator should be expected to exercise the care necessary to prevent harm to a person coming on his premises so affected by grief as to be unable to exercise proper care for her own safety. See Annot. 14 A.L.R.3d 629, 631 (1967...