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Bernier v. Smitty's Sports Pub, Inc.

Appeals Court of Massachusetts, Bristol

October 11, 2016

NANCY BERNIER, administratrix, [1] & another [2]
v.
SMITTY'S SPORTS PUB, INC.

          Heard: December 18, 2015.

         Civil action commenced in the Superior Court Department on June 28, 2010.

         The case was tried before Richard T. Moses, J.

          John P. Knight for the defendant.

          J. Christopher Amrhein for the plaintiffs.

          Present: Cohen, Trainor, & Katzmann, JJ.

          TRAINOR, J.

         The 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.

         Background.

         We 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.

         The 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 punitive damages.

         Discussion.

         The 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.

         Duty ...


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