2019 Mass. App. Div. 23

September 21, 2018 - February 26, 2019

Appellate Division Northern District

Court Below: District Court, Lawrence Division

Present: Coven, P.J., Nestor & Flynn, JJ.

Dana A. Curhan for the plaintiff.

Christopher K. Sweeney and Michael T. Sullivan for the defendant.

FLYNN, J. The issue in this appeal is whether the evidence presented in a slip and fall trial was legally sufficient to support the trial judge's finding of liability, specifically, that the defendant knew or should have known of the presence of a large puddle inside the front entrance to the premises.

Background. This case involved injuries sustained in a slip and fall at a Burger King restaurant operated by the defendant, Northeast Foods, LLC ("Northeast").

On December 18, 2015, the plaintiff, Maureen O'Neil ("O'Neil"), filed a civil complaint in the trial court against Northeast, alleging a single count of negligence. The court conducted a bench trial on February 16, 2018. At the conclusion of the evidence, Northeast moved for involuntary dismissal, which the court denied. The court then took the matter under advisement. Neither party filed any requests for findings of fact or rulings of law pursuant to Mass. R. Civ. P. 52. On February 27, 2018, the court entered findings in favor of O'Neil. On March 19, 2018, the court entered judgment in her favor in the amount of $10,509.19, which included $8,085.00 in damages, plus interest and costs.

On March 29, 2018, Northeast filed an appeal on the record of proceedings from the denial of its motion for involuntary dismissal under Mass. R. Civ. P. 41(b)(2). Northeast did not contest at trial, and does not appear to contest on appeal, that Maureen suffered injuries as a result of a hazardous condition on its premises. Instead, it claims that because she could not say how long the water had been on the floor, she failed to establish that Northeast should have known about the hazard or that it had sufficient time to clean it up.

The standard of review of a Rule 41(b)(2) motion is whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Sonogram of New England, Inc. v. Metropolitan Prop. & Cas. Ins. Co., 2002 Mass. App. Div. 68, 70-71, quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). We summarize the evidence in the light most favorable to the plaintiff. Medford Co-op. Bank v. Skerry, 2004 Mass. App. Div. 120.

At trial, O'Neil testified that on August 13, 2014, she and her daughter, Jillian, decided to stop for lunch at a Burger King in Methuen. There are two entrances to the restaurant, one in the front of the building on Pleasant Valley Street, and a side entrance on Milk Street. Maureen parked near the front entrance, as it was raining "something

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awful." She took Jillian by the hand as they made their way to the door. She walked in front of Jillian so she would have sufficient space to get in the door. As she walked in the front entryway, her right leg flew out as if she were doing a split, and she came crashing down on her left knee. At that point, she stated that there was water everywhere, and that it was a floor pooled with water. She observed a puddle three or four feet around on the tile floor. A couple of employees were required to sop it up. She was soaked from the fall. Jillian started screaming and crying, and several other patrons immediately ran up to O'Neil and helped her onto a bench. She felt that the wind had been knocked out of her. As she sat there, she observed that there was a yellow cone and a mat inside the other entrance, but there was nothing inside the front entrance. She acknowledged that it was raining something awful that day, like a monsoon. She acknowledged that the water could have been tracked in by customers, but that this water was more -- that the door seemed stuck a bit and that there was water just coming in through the door.

One of the patrons left and returned with a uniformed employee. He had her write her name and address on a piece of scrap paper. She also wrote that she had slipped and fallen on her left side. She gave the paper to the employee and asked if someone would contact her. She told the employee to clean up the puddle. A couple of other employees mopped up the water and immediately put out a cone where she had fallen. She was in pain, which she described as a ten on a scale of one to ten.

After four or five minutes, O'Neil got up and went to the car with Jillian. She could not put weight on her leg but figured that if she could drive home, a roommate would help her out. She drove around the corner to her condominium and thereafter received some medical treatment.

Later, she treated at Essex Orthopedics. An MRI did not show any structural damage. Still, the pain persisted. Essex Orthopedics referred her for physical therapy. She initially walked with crutches for a few months and later switched to a cane. She also went to physical therapy. Her knee injury has limited her walking and other activities, including her activities with her daughter, and it has made her other medical conditions more complicated.

Discussion. Northeast contends that no view of the evidence at trial could support by a fair preponderance of the evidence that O'Neil sustained injuries as a result of its negligence. See Bennett v. Eagle Brook Country Store, Inc., 408 Mass. 355, 358 (1990). See generally Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 221-222 (2009); Pritchard v. Mabrey, 358 Mass. 137, 144 (1970). Therefore, it argues that the trial court was required to allow its motion for involuntary dismissal. O'Neil contends, however, that viewed in the light most favorable to the plaintiff, the evidence amply supports each element of her negligence claim.

"A business owes a 'duty to a paying patron to use reasonable care to prevent injury to him by third persons,' Sweenor v. 162 State St., Inc., 361 Mass. 524, 526 (1972), and 'to keep [its] premises in a reasonably safe condition for [its] visitors' use.' Jaillet v. Godfried Home Bakeries, Inc., 354 Mass. 267, 268 (1968), quoting LeBlanc v. Atlantic Bldg. & Supply Co., 323 Mass. 702, 705 (1949)." Bowers v. P. Wile's, Inc., 475 Mass. 34, 37-38 (2016). See Glidden v. Maglio, 430 Mass. 694, 696 (2000) (plaintiff seeking to prove negligence must establish defendant's breach of duty of reasonable care).

Under the traditional approach, where a claim of negligence involves a slip and fall, proof that the defendant breached its duty of care requires that the plaintiff

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"identify the hazardous condition that caused [her] to slip, prove that it was present prior to [her] injury, and demonstrate that the defendant either caused the [condition] to be there, had actual knowledge of its existence, or had a reasonable opportunity to discover and remedy it." Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 337 (2003). See Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 782-783 (2007); Oliveri v. Massachusetts Bay Transp. Auth., 363 Mass. 165, 167 (1973).

Initially, we note that this is not a case where a customer may have spilled something on the floor without the knowledge of Northeast's employees and without an opportunity to discover and clean the spill. See Deagle v. Great Atl. & Pac. Tea Co., 343 Mass. 263, 265-266 (1961) (in attempting to demonstrate defendant's opportunity to discover spilled liquid, plaintiff had some burden of showing how long it may have been there). Rather, the evidence presented supports a finding that the water had been on the floor for some time and that Northeast's employees should have known of its presence.

According to the testimony, the accumulated water did not result solely from people tracking in water from outside. Although O'Neil testified that some of the water appeared to have been tracked in by other customers, she also testified that the door was sticking in the open position and that there was some construction around the awning. She described more than simply a wet floor. Her description of the puddle can certainly be characterized as an unusually large accumulation of water -- that is, "water in larger quantity or for a greater length of time than was naturally to be expected in the circumstances." Pettie v. Stop & Shop Supermarket Co., 1996 Mass. App. Div. 41, 43, quoting Grace v. Jordan Marsh Co., 317 Mass. 632, 633 (1945). A reasonable fact finder could conclude that the water that had accumulated was more than and not consistent with water being tracked in by other customers.

Additionally, O'Neil described the ongoing construction around the awning at that entrance, and she specifically testified that the door seemed to be not closing all the way, which again caused a large amount of water to come in from outside. These circumstances also could have placed Northeast on notice that an unnatural amount of water accumulated during the inclement weather, that it had been there as long as it had been raining, and that this level of water accumulation was likely something that occurred when it rained, at least during the persistent rain that day. See Gallagher v. Stop & Shop, Inc., 332 Mass. 560, 563 (1955) (although no direct knowledge of when ice cream may have been spilled in vestibule of store, some appreciable time must have elapsed also for it to have melted, placing store employees on notice of hazardous condition); Thurlow v. Shaw's Supermarkets, Inc., 49 Mass. App. Ct. 175, 177-178 (2000) (evidence supported grocery store customer's negligence action for injuries sustained when she slipped on water-soaked rug in puddle of water caused by melting ice in case in which fish products were displayed where it could be inferred that it took sufficient time for water to accumulate so as to put store employees on notice of hazardous condition).

Moreover, the location of the water is significant. O'Neil did not slip on something spilled in a restroom or some obscure location within the building where employees might not have noticed it right away. The water had accumulated in the front entryway within the obvious view of the employees. See Gallagher, supra at 563 (ice cream in front exit would have been visible to cashiers).

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Aside from the actual source of the water present, solely as a result of being tracked in by other customers or from some other cause, the nature and extent of the water would allow a reasonable fact finder to conclude that Northeast clearly knew of or should have known of the hazard caused by the unusually severe weather. It placed a mat and a warning cone in the side entrance, suggesting an awareness that water would be tracked in and would otherwise come in the door during inclement weather and seemingly placed no precautions in the front entrance.

While Northeast argues that its employees did not know of and should not have known of the accumulated water, the trial court did not have to accept that theory, and its findings are more than sufficient to establish liability. "Appellate courts may not disregard or set aside a trial judge's findings unless they are clearly erroneous." Thurlow, supra at 177. Further, "[a]ppellate review of the facts found at a bench trial does not permit the weighing of the evidence anew." Id.

We find that evidence supports the trial court's conclusion that employees of Northeast were or should have been on notice of the hazardous condition, and we affirm the trial court's order denying the defendant's motion for involuntary dismissal.


[Note 1] Doing business as Burger King.