2019 Mass. App. Div. 126

May 31, 2019 - October 31, 2019

Appellate Division Northern District

Court Below: District Court, Chelsea Division

Present: Coven, P.J., Crane & Karstetter, JJ.

Joshua M. Loveall for the plaintiff.

Paul E. McIver for the defendant.

CRANE, J. This is an appeal from a verdict for the plaintiff arising from injuries she received after she fell on what is alleged to be a foreign substance on the floor of one of the defendant's super markets.

The defendant asserts error because the trial judge instructed the jury, over the defendant's objection, on "mode of operation," see Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788-789 (2007), as an alternative for requiring the plaintiff to provide evidence that the defendant had actual or constructive notice of any foreign substance. The defendant also appeals from the denial of its motions for directed verdict and judgment notwithstanding the verdict that there was insufficient evidence to permit the jury to find negligence. Last, the defendant asserts that the amount of the award was against the weight of the evidence and seeks a remittitur or new trial. We affirm the judgment of the trial court.

Video evidence showed that three minutes before the plaintiff fell a child in a shopping cart dropped a bottle on the floor in one of the shopping aisles. The plaintiff fell where the child dropped the bottle. The plaintiff never saw any substance until after she fell. After she did fall, she saw that she had slipped on a sticky, brown substance. There was no evidence that any of the defendant's employees had actual notice of any foreign substance before the fall. There was evidence that the defendant's employees were trained to inspect for any spills or hazards in the aisles and to protect customers until they could be cleaned up.

The plaintiff submitted evidence that she injured her right shoulder and left knee and hip. She had a preexisting back condition that was not exacerbated by her fall. By the time of trial, the injuries to her shoulder and left hip resolved. The injury to her left knee continued. There was evidence that she incurred medical expenses of over $3,000. There was also evidence of pain and suffering, that her children were required to attend to her terminally ill spouse because she could no longer do so, and that she continued to walk with a cane because of the injury to her left knee. There was no evidence or claim for any loss of earning capacity.

The jury returned a verdict on special questions that found the defendant's negligence caused the plaintiff's injuries. The special question on negligence was, "Was the defendant Demoulas Super Markets, Inc. negligent?" [Note 1] There was no inquiry

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whether the jury found that there was constructive notice that the defendant should have known that the substance that caused the plaintiff's fall was on the floor of the merchandise aisle or whether the jury found the defendant negligent based upon the defendant's mode of operation as an alternative to constructive notice. It found no comparative negligence on the part of the plaintiff and awarded her damages in the amount of $50,000.

First, the defendant argues that it was error to fail to instruct the jury that the defendant has a reasonable amount of time to discover and remedy a hazardous condition. Barry v. Beverly Enters.-Mass., Inc., 418 Mass. 590, 593 (1994). The defendant did not make any objection at the conclusion of the charge on this or any other ground as required by Mass. R. Civ. P. 51(b). It failed to preserve this objection to the charge for appellate review. Composto v. Massachusetts Bay Transp. Auth., 48 Mass. App. Ct. 477, 480 (2000). Notwithstanding this failure, we note that the judge did instruct, "The duty of care may include a duty to warn visitors of any dangers of which the owner or one in control of the premises is aware or reasonably should be aware. It is up to you [jurors] to determine whether a condition that existed required a warning, and if so, whether the warning that was given was sufficient."

This instruction adequately addressed this issue that the defendant raises for the first time on appeal. Had the defendant made a timely and proper objection to this instruction before the jury began to deliberate, the trial judge would have had an opportunity to consider whether the charge on actual and constructive notice might have been deficient as the defendant now claims. To the extent that the defendant asserts that it was less than adequate now, it illustrates why a party who is not satisfied with a jury instruction must make a timely objection stating the grounds and proposed improvements that it wants the trial judge to make before the jury begins to deliberate. Miller v. Boston & Maine Corp., 8 Mass. App. Ct. 770, 774 (1979); J.W. Smith & H.B. Zobel, Rules Practice § 51.6 (2d ed. 2007). Otherwise, parties who are dissatisfied with any aspect of the court's charge to the jury would be permitted to refrain from objecting; hope that the verdict was favorable to them, notwithstanding any deficiency; and if it was not, they would be permitted to raise issues related to the instructions without having given the trial judge an opportunity to cure any deficiencies.

The defendant's objection on appeal to the "mode of operation" instruction does not suffer quite the same procedural deficiency because during a charge conference before instructing the jury, the trial judge ruled that he would instruct on mode of operation and did so, over the defendant's objection at the charge conference.

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Rotkiewicz v. Sadowsky, 431 Mass. 748, 751 (2000). However, notwithstanding that the defendant also failed to object to this portion of the charge after it was completed and before the jury retired to deliberate, we will examine the propriety of the mode of operation instruction as a substitute for actual or constructive notice of the presence of the substance on the merchandise floor where it was covered at the charge conference and thoroughly briefed for this appeal. [Note 2]

The defendant contends that the mode of operation approach did not apply in this case. It asserts that the plaintiff did not show that she was caused to fall as a result of a reasonably foreseeable condition caused by the defendant's mode of operation. It points to the absence of any evidence that the means of display of the bottle made it more likely to be dropped by the child. It argues that the trial judge should have instructed only on the traditional approach that requires actual or constructive notice to a merchant in control of the premises of any dangerous conditions caused by third persons, not employed by the merchant.

The plaintiff responds that liquids spilled on the merchandise floor are a risk for any self-service food market, and that the plaintiff was entitled to an instruction on mode of operation. The defendant's manager of the store where the plaintiff fell testified that liquids from drinks and merchandise handled by customers are regularly spilled on the floor. There was evidence that the defendant's employees were instructed to detect, report, and clean up any liquids on the floor of the shopping area, regardless of the source of the substance.

This evidence warranted an instruction to the jury to consider whether it found that spilled liquids on the shopping floor of the defendant's store was a recurring occurrence arising from the defendant's mode of operation. If it was, the jury could go on to consider whether the defendant was negligent under all of the circumstances as the judge went on to charge them. Sheehan, supra at 791-792. The mode of operation approach is a substitute for constructive notice and does not require a plaintiff to provide evidence of negligence by the defendant in the marketing and display of merchandise as in Gilhooley v. Star Mkt. Co., 400 Mass. 205 (1987). There was evidence that because of the defendant's self-service mode of operation, customers regularly spilled liquids on the floor of the shopping area and that the plaintiff fell on spilled sticky liquid.

The judge correctly instructed the jury to consider the defendant's mode of operation as a substitute for constructive notice of the spill. "[T]he determination whether an owner exercised reasonable care in making the premises safe for invitees is a question of fact[;] it, then, becomes the task of the trier of fact to determine whether the owner could reasonably foresee or anticipate that the dangerous condition regularly occurs and whether the owner took all necessary reasonable precautions commensurate with the risks inherent in a self-service method of operation to protect individuals from such foreseeable risks." Sheehan, supra at 792. The defendant's arguments based upon decisions in Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679

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(2015) and Bowers v. P. Wile's, Inc., 475 Mass. 34 (2016) are not persuasive. They did not involve self-service retail. In fact, they were successful efforts to extend the application of "mode of operation" to retails activities that did not involve self-service. Those decisions continued to support the mode of operation approach in self-service retailers in circumstances such as presented here.

Next, we address the defendant's appeal from the denial of its motions for directed verdict and judgment notwithstanding the verdict. An appellate court reviews the denial of a motion for a directed verdict under the same standard applied by the trial judge. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007). We must "construe the evidence in the light most favorable to the nonmoving party and disregard that favorable to the moving party." Id. "Our duty in this regard is to evaluate whether 'anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the [nonmovant].'" Id., quoting Dobos v. Driscoll, 404 Mass. 634, 656 (1989).

The defendant argues that the length of time between the time of the spill and the plaintiff's fall, slightly more than three minutes, was too short to permit the jury to conclude that the defendant was negligent. However, all of the circumstances must be considered, including the length of time between spill and fall. "The length of time allowed to a defendant is governed by the circumstances of each case and to a large extent depends on '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.'" Oliveri v. Massachusetts Bay Transp. Auth., 363 Mass. 165, 167 (1973), quoting Deagle v. Great Atl. & Pac. Tea Co., 343 Mass. 263, 265 (1961).

The video shown to the jury provided them with evidence not only of the time between the spill and the fall but also the proximity and number of defendant's employees in the area of the spill before the plaintiff fell. This evidence of the circumstances was adequate to permit the jury to consider whether the defendant took all necessary reasonable precautions commensurate with the risks inherent in a self-service method of operation to protect individuals from such foreseeable risks. There was no error in denying the motions for directed verdict and judgment notwithstanding the verdict.

In the alternative, the defendant appeals from the denial of its motion for new trial upon the same findings contested by its motion for a directed verdict. The standard for a trial judge's discretion is whether the challenged portions of the verdict emerge as "so greatly against the weight of the evidence" as to appear to be "the product of bias, misapprehension or prejudice," Turnpike Motors, Inc., v. Newbury Group, Inc., 413 Mass. 119, 127 (1992), quoting Scannell v. Boston Elev. Ry., 208 Mass. 513, 514 (1911), or whether the jury "failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law." Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948). For the reasons already specified, the challenged elements of the verdict had the support of the evidence and law. The judge's denial of a new trial was not an abuse of discretion.

Last, the defendant urges that the damages awarded by the jury were excessive and that a new trial should be granted unless the plaintiff accepts a remittitur. "An appellate court will not find an abuse of discretion in the judge's refusal to grant

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a new trial on the ground of excessive damages 'unless the damages awarded were greatly disproportionate to the injury proven or represented a miscarriage of justice.'" Moose v. Massachusetts Inst. of Tech., 43 Mass. App. Ct. 420, 427 (1997), quoting Mirageas v. Massachusetts Bay Transp. Auth., 391 Mass. 815, 822 (1984). The damages awarded were not disproportionate to the injury proven and the award did not represent a miscarriage of justice. Again, there was no error in denying the motion for new trial for an excessive award of damages.

Judgment affirmed.

So ordered.


[Note 1] The trial judge instructed the jury on both traditional constructive notice and the alternative arising from the defendant's mode of operation. It would have been appropriate and may have been preferable for the judge to have asked the jury whether it found that the plaintiff proved constructive notice or the mode of operation alternative in reaching the conclusion that the defendant was negligent. The defendant did not object or request that the trial judge expand the special question on negligence to be more specific. Given that the jury were properly instructed on both theories, we cannot conclude that the jury's answer to the more general question of whether the defendant was negligent or not was the product of juror confusion. Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 549 (2014); J.W. Smith & H.B. Zobel, Rules Practice § 49.5 (2d ed. 2007).

[Note 2] Massachusetts R. Civ. P. 51(b) and cases interpreting it are clear that objections to proposed instructions after the judge completes the jury instructions and before the jury commences deliberations are necessary to preserve any issue concerning jury instructions. Objections during a charge conference do not always preserve these issues for appeal. See Flood v. Southland Corp., 416 Mass. 62, 67 & n.5 (1993).