Opinion
11-P-236
03-06-2012
SALLY KLESSENS v. BUILDING 19, INC. & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This tort action against Building 19, Inc. (Building 19), sounding in negligence, arose out of a physical altercation in the checkout line of the Somerville store location of the defendant, a well-known retailer. A judge of the Superior Court allowed the motions for summary judgment and for separate and final judgment brought by Building 19 under Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), from which the plaintiff appeals. We affirm.
Following the allowance of separate judgment in favor of Building 19, the city of Somerville and its two police officers (McGrath and Kiely) successfully moved for summary judgment, from which the plaintiff has also appealed. (It is docketed under Appeals Court No. 11-P-1372.)
The principles of law governing this dispute are well-settled. As the possessor of land open to the public, Building 19 owed a duty to its business invitees to use reasonable care to prevent injury to them by third persons. See Luisi v. Foodmaster Supermarkets, Inc., 50 Mass. App. Ct. 575, 576-577 (2000). Building 19, however, was not a guarantor of customer safety. See id. at 577. 'The duty owed [wa]s limited to guarding against reasonably foreseeable risks of harm.' Ibid. In evaluating foreseeability questions, 'all the circumstances are examined.' Flood v. Southland Corp., 416 Mass. 62, 72 (1993). Questions of foreseeability may properly be decided as matter of law. See, e.g., Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 44- 45 (2009); Westerback v. Harold F. LeClair Co. 50 Mass. App. Ct. 144, 146 (2000).
It was undisputed that Klessens and the three other women involved in the altercation were lawfully on the premises.
We note that the word 'foreseeable' is relevant in defining 'both the limits of a duty of care and the limits of proximate cause.' Whittaker v. Saraceno, 418 Mass. 196, 198 (1994). Accord Or v. Edwards, 62 Mass. App. Ct. 475, 484 n.13 (2004).
Klessens contends that Building 19 is liable for negligent infliction of emotional distress based upon her claim that its cashier took an inordinately long time to conduct a price check and failed to utilize 'alternative action or means to process the many customers waiting in the checkout line'; this, in turn, led to friction and a verbal confrontation, culminating in a physical affray between Klessens and the three women behind her. She contends, therefore, that as a result of Building 19's negligence, she suffered 'physical harm and great emotional distress.' We conclude, as did the motion judge, that the violent physical altercation that lead to Klessens's injuries exceeded the scope of the foreseeable risk of harm created by Building 19's conduct. See Foley v. Boston Hous. Authy., 407 Mass. 640, 645-646 (1990); Poskus v. Lombardo's of Randolph, Inc., 423 Mass. 637, 639-641 (1996).
Although Klessens designated the sole claim against Building 19 (count V) as one for negligent infliction of emotional distress, the substance of her factual allegations sounded in simple negligence.
Here, there was no evidence of any prior altercations, torts, or crimes within or near the store. There was no evidence that the store was located in a high crime area. Nor was there evidence that any of the women acted in an unusual or aggressive manner before the incident potentially posing a threat to other shoppers. The attack occurred on a very busy Saturday during the course of a disputed price and a subsequent price check, a common occurrence in a retail establishment regularly endured by lined-up customers without incident. In these circumstances, while annoyance to the other customers may have been foreseeable, a brawl between customers could not have been reasonably anticipated by Building 19.
A jury of six convicted Klessens of two counts of assault and battery in connection with the incident. This court affirmed the convictions. See Commonwealth v. Klessens, 67 Mass. App. Ct. 1114 (2006). In that appeal, this court rejected Klessens's duplicative conviction argument, finding that the incident involved two separate phases (one in which Klessens kicked the victim twice and one in which Klessens repeatedly hit the victim as the victim tried to push Klessens away from her daughter). These convictions and issues of fact are not subject to collateral attack in this action.
A violent physical altercation was not the natural, reasonable and probable consequence of the delayed price check and the cashier's failure to immediately follow the manager's directions to sell the item to Klessens at a reduced price. Contrast Gidwani v. Wasserman, 373 Mass. 162, 166-167 (1977) (affirming finding that the likelihood of a burglary was a natural and foreseeable consequence of the landlord's unlawful entry into the rented store and the disconnection of the alarm).
There are no material facts, disputed or undisputed, which show that Building 19's failure to use reasonable care proximately caused her physical and emotional injuries. See Jupin v. Kask, 447 Mass. 141, 145-146 (2006). Consequently, as matter of law, summary judgment was properly granted in favor of Building 19.
Finding as we do an absence of foreseeability, there is no need to consider whether the judge's application of collateral estoppel was improper. See Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742 (1985). Any new theories of negligence that were not submitted to the judge in opposition to Building 19's motion are not properly before us. See Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989) ('An issue not raised or argued below may not be argued for the first time on appeal'). In any event, were the hostile environment theory timely raised, it would fail as matter of law for the same reason as the other theories pleaded in Klessens's amended complaint. Finally, any issues presented in Klessens's statement of the issues in her brief that were not argued are deemed waived. See Patel v. Amresco SBA Holdings, Inc., 69 Mass. App. Ct. 192, 197 (2007).
Judgment affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),