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Bowers v. P. Wile's, Inc.

Appeals Court of Massachusetts, Middlesex

May 15, 2015

Linda S . Bowers
v.
P. Wile ' s, Inc . [1]

Argued: December 10, 2014.

Civil action commenced in the Superior Court Department on February 24, 2012.

The case was heard by Paul D. Wilson, J., on a motion for summary judgment, and a motion to vacate judgment was heard by him.

David McCormack for the plaintiff.

Joseph T. Black for the defendant.

Present: Kantrowitz, Green, & Sullivan, JJ.

OPINION

[30 N.E.3d 848] Green, J.

In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788, 863 N.E.2d 1276 (2007) ( Sheehan ), the Supreme Judicial Court adopted the so-called " mode of operation" approach to premises liability. Under that approach, a plaintiff injured as the result of a dangerous condition on an owner's property is relieved of the need to prove that the owner had actual or constructive notice of the condition if he instead establishes that the dangerous condition was " related to the owner's self-service mode of operation." Id. at 786. In the present case, a judge of the Superior Court allowed the defendant's motion for summary judgment, based on his view that the mode of operation approach applies only where the dangerous condition results from breakage or spillage of

Page 363

items offered for sale.[2] We discern no such limitation in the mode of operation approach described by the Supreme Judicial Court in Sheehan, supra, or in the rationale supporting it. We also conclude that the summary judgment record does not foreclose the prospect that the plaintiff could succeed, at trial, in proving that the defendant failed to use reasonable measures to prevent injuries that could result from the foreseeable dangerous condition. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714, 575 N.E.2d 734 (1991). We accordingly reverse the judgment and the order denying the plaintiff's motion to vacate the judgment, and remand the matter to the Superior Court for further proceedings.

Background.

We review the entry of summary judgment de novo, construing all [30 N.E.3d 849] facts in favor of the nonmoving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). We summarize the undisputed facts, construed in that manner, as they appear in the summary judgment record.

On the afternoon of December 28, 2011, the plaintiff rode with her father to the defendant's store on Cape Cod.[3] The weather was clear, with no precipitation, and the ground was dry. After getting out of the vehicle, the plaintiff walked on the " inner side of the sidewalk" toward the store. Before reaching the store, however, she fell after stepping on a small " river stone" about three-quarters inch in size.[4] The stone was on the sidewalk after having been moved (by some unknown means) from an adjacent gravel area maintained by the store. The plaintiff did not see the stone, or any other stones, on the sidewalk before falling. As a result of her fall, the plaintiff suffered a " displaced fracture of her right hip that required two surgical repairs."

At the time of her accident, the plaintiff was looking at a birdbath on display in the gravel area. She was wearing shoes called " clogs," and she had had no difficulty with the shoes on that day or in the past. When she fell, she remained on the sidewalk and did not fall into the gravel area or strike any of the merchandise on display.

Page 364

The plaintiff had visited the store on multiple occasions since the late 1980s or early 1990s. She had walked on the same sidewalk before and had seen similar river stones on it, without encountering difficulty.

The concrete sidewalk on which the plaintiff fell was about six feet wide and ran between the parking lot and the store, in front of, and parallel to, the store front. The gravel area, also about six feet wide, was between the sidewalk and the store front.

Between the gravel area and the front wall of the store building was a porch area. The porch floor surface was on the same plane as the sidewalk and gravel area and was about six feet wide. The store displays merchandise both within the porch area and on and around the gravel area, and customers are allowed to help themselves to products from those areas.

Jessica Wile, a store manager, testified that the store sells various outdoor products during the winter months, including pottery, birdbaths, and shovels. The store's cash registers are located inside and near the store's front doors. The front doors are the only entrance for customers in the winter months; an alternate entrance through the greenhouse, also at the front of the store, is closed during the winter.

The store constructed the gravel area about fifteen years before the accident.[5] Prior to the plaintiff's fall, no other complaints regarding river stones on the sidewalk were brought to the store's attention, and no accidents from river stones on the sidewalk had occurred. However, it was a common occurrence for customer foot traffic through the gravel area, or manipulation [30 N.E.3d 850] of merchandise displayed there, to cause river stones to move from the gravel area onto the sidewalk. When assisting customers in carrying merchandise to their cars, or when retrieving shopping carts from the parking lot, store employees would look to see if river stones were present on the sidewalk, and would kick any ...


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