Heard: December 18, 2015.
action commenced in the Superior Court Department on June 28,
case was tried before Richard T. Moses, J.
P. Knight for the defendant.
Christopher Amrhein for the plaintiffs.
Present: Cohen, Trainor, & Katzmann, JJ.
defendant, Smitty's Sports Pub, Inc. (Smitty's),
appeals from a judgment in favor of the plaintiffs that
entered following a jury trial of a wrongful death lawsuit of
Ronald J. Leger, the plaintiffs' decedent (decedent),
filed by Nancy M. Bernier, administratrix of the estate of
Ronald J. Leger, and Cecile M. Leger (plaintiffs). We are
asked to determine whether the decedent was a trespasser and,
therefore, what duty of care was owed to him by the
defendant. The defendant argues that the trial court erred in
denying its motion for directed verdict and motion for
judgment notwithstanding the verdict because the decedent was
a trespasser as a matter of law. Alternatively, the defendant
argues that the determination whether the decedent was a
trespasser should have been a question of fact that was
presented to the jury. We affirm.
recite the facts the jury could have found, reserving some
facts for later discussion. On March 11, 2010, the decedent,
age seventy-four, went into Smitty's rear entrance. Upon
entering Smitty's, the decedent mistakenly opened a door
marked "Employees Only" believing it was the
men's bathroom. Three doors, marked "Gentlemen,
" "Ladies, " and "Employees Only, "
were all similarly marked, the same color, and close to each
other. The "Employees Only" door opened directly
onto a concrete staircase which had a drop of over two and
one-half feet onto the middle of the staircase. The
"Employees Only" door opened inward onto the unlit
stairwell. The "Gentlemen's" and
"Ladies'" doors opened outward. The
"Employees Only" door was usually locked during
business hours but was not locked at the time of the
incident. The decedent fell down the steps and died of his
injuries two weeks later.
jury found that the defendant was negligent in the
maintenance of the property and that this negligence was
causally related to the injuries suffered by the decedent.
The jury determined that the decedent was twenty percent
negligent and the award of damages was reduced by that
percentage. The jury also found that the defendant's
conduct was not grossly negligent and therefore awarded no
defendant argues that the judge erred in denying the
defendant's motion for a directed verdict and a motion
for judgment notwithstanding the verdict because the decedent
was a trespasser as a matter of law. The defendant argues
that if the decedent was a trespasser, there would be no tort
liability established on the facts of this case. We must
first determine the nature of the legal duty of care that the
defendant owed to the decedent, and then determine whether
there was an evidentiary basis for the jury to have
determined that the defendant breached the duty of care owed
to the decedent.