Opinion
No. 15–P–1263.
07-20-2016
Maria BELANGER & another v. BOYS IN BERRIES, LLC & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs in this personal injury case, Maria Belanger and Ray Belanger, appeal from the grant of summary judgment to the defendants, Boys in Berries, LLC and Farm Family Casualty Insurance Company, by a judge of the Superior Court. The plaintiffs assert that the judge erred in ruling that the defendants did not create an unsafe condition as a matter of law.
We recite the facts in the light most favorable to the nonmoving parties, the plaintiffs. See Terra Nova Ins. Co. v. Fray–Witzer, 449 Mass. 406, 411 (2007). Boys in Berries, LLC operates a farm and retail store in Sharon, Massachusetts. On July 25, 2010, Maria Belanger (Belanger) arrived at the farm store with her husband. She entered the farm store while her husband stayed in the car. When Belanger entered the farm store she turned to the left, which enabled her to bypass the checkout counters without viewing them.
The facts are not in dispute.
Belanger selected a few items to purchase and stepped into the checkout line. At the end of the checkout counter was a large octagonal cardboard box placed on top of a square wood pallet. The box and pallet were located directly adjacent to the end of the checkout counter, set back several inches from the vertical surface of the counter. From the checkout line, the top of box was visible, but the square pallet on which it rested could not be seen. While in line, Belanger noted that the box was octagonal.
After paying for her items, Belanger walked forward and turned to her right, heading to the exit. She noticed the pallet underneath the box only a “couple of seconds” before catching her right foot under the corner of the pallet. Her subsequent fall resulted in a hip and shoulder fracture. The octagonal box had warning arrows pointing to the pallet corners; these arrows however, like the pallet itself, were obscured from the view of a person in the checkout line due to the placement of the box.
The summary judgment record included photographs of the obscured view from the checkout counter and of the box with arrows sitting on the pallet as they would appear once they became visible to an exiting customer. The record does not establish whether the arrows were marked on the box specifically to warn of the protruding corners of the pallet.
A large crate of melons stood on the opposite side of the exit path and within a few feet of the pallet and box. At the time of the accident, there were no defects with the lighting or any debris on the floor. There was no evidence suggesting that the pallet was defective or broken.
Discussion. “Summary judgment is appropriate where there is no genuine issue of material fact and, where viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” O'Sullivan v. Shaw, 431 Mass. 201, 203 (2000). We review a grant of summary judgment de novo. Bank of N.Y. v. Bailey, 460 Mass. 327, 331 (2011).
Owners of land owe a duty to maintain their “property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Quinn v. Morganelli, 73 Mass.App.Ct. 50, 52 (2008), quoting from Mounsey v. Ellard, 363 Mass. 693, 708 (1973). Additionally, landowners must remove or “warn visitors of any unreasonable dangers of which the landowner is aware or reasonably should be aware” unless those dangers are open and obvious. Quinn, supra.
Open and obvious dangers do not require warning “because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from such blatant hazards.” O'Sullivan v. Shaw, 431 Mass. at 204.
Although the use of a pallet itself may not be unreasonably dangerous, the manner in which it is placed could present a genuine dispute with respect to the issue of dangerousness. See Papadopoulos v. Target Corp., 457 Mass. 368, 371 (2010), citing Watkins v. Goodall, 138 Mass. 533, 536 (1885) (landlord liable for wanton or negligent placement of an obstruction in common area). On this record, a reasonable jury could have found that defendant Boys in Berries, LLC created an unsafe condition by placing the box on top of the obscured pallet along the path from the checkout counter to the store exit. While this does not provide a very strong case for the plaintiffs, it presents a genuine issue of material fact, somewhat reinforced by a jury's ability to find that the arrows on the box, also obscured, were intended to warn of the type of injury sustained by Belanger in this case. See Robicheau v.. Supreme Mkts., Inc., 333 Mass. 608, 609 (1956) (“The jury could have found that having a box [five to eight inches in height near a counter] was a breach of the obligation to use reasonable care to maintain the premises in a reasonably safe condition for customer use”).
Because the octagonal box and square pallet were of different configuration, the corners of the pallet extended beyond the bottom of the box.
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In addition, the record presents a genuine dispute whether the pallet was an open and obvious danger not requiring a warning. “Implicit in the open and obvious doctrine ... is the assumption that the warning provided by the open and obvious nature of the danger is by itself sufficient to relieve the property owner of its duty to protect visitors from dangerous conditions on the property.” Papadopoulos v. Target Corp., 457 Mass. at 379. A reasonable jury could find that the protruding corner of the pallet could not be seen until a customer turned to exit the store, and was therefore not placed in an open and obvious manner. While the judge did not err in his general assessment that the plaintiffs' case is not very strong, we conclude under these circumstances that the plaintiffs have surmounted the relatively low bar required to survive summary judgment.
The judgment is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
Judgment reversed.