Opinion
No. 99-2140.
March 14, 2001.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This action arises out of a slip and fall accident that occurred outside a Stop Shop
Supermarket ("Stop Shop") in Worcester, Massachusetts. Plaintiff Helen Moylan ("Moylan") has brought suit against four defendants claiming, in each instance, negligent acts and omissions. Her causes of action are:
A. Against Defendant Perkins Farm Market Place, Ltd. ("Perkins") (Owner)
Count I- Negligent Failure to Supervise Construction
Count II- Negligent Failure to Maintain
Count III- Negligent Failure to Install
Count IV- Respondeat Superior
B. Against National Development of New England ("National") (Developer)
counts, by agreement.
Count V- Negligent Failure to Supervise Construction
Count VI- Negligent Failure to Install
Count VII- Negligent Failure to Maintain
Count VIII- Respondeat Superior
C. Against Francis Harvey Sons ("Harvey") (Builder)
Harvey's Rule 56 motion is ALLOWED, as to counts IX, X and XII, by agreement.
Count IX- Negligent Failure to Install
Count X- Negligent Design
Count XI- Negligent Failure to Supervise Construction
Count XII- Respondeat Superior
D. Against Newbury Design Associates ("Newbury") (Architect)
Newbury's Rule 56 motion is ALLOWED , as to all counts, by agreement.
Count XIII- Negligent Design
Count XIV- Negligent Installation
E. Against Stop Shop Supermarket ("Stop Shop") (Retailer)
Count XV- Negligent Failure to Maintain
Count XVI- Negligent Failure to Install
Count XVII- Negligent Failure to Supervise Construction
Count XVIII- Respondeat Superior
The motions for summary judgment presented for resolution by this court are those offered by defendant Harvey upon Count XI and defendant Stop Shop upon Counts XV, XVI, XVII, and XVIII. For the reasons stated,infra, each motion will be ALLOWED .
Defendant Perkins Farm has not offered a Rule 56 motion to this court.
BACKGROUND
On December 8, 1997, at approximately 3:30 p.m., Moylan planned to market at the Stop Shop located at 949 Grafton Street in Worcester. After parking her car, Moylan and her husband crossed the parking lot at the pedestrian crosswalk, headed toward the entrance of the store and reached the sloped curb leading from the crosswalk up onto the sidewalk. Moylan asserts that shopping carts blocked the end of the crosswalk and the sloped curb from the crosswalk up onto the sidewalk, obstructing her intended path to the Stop Shop. As Moylan stepped up onto the sidewalk in front of the Stop Shop entrance, she allegedly tripped and fell.
Moylan's fall occurred near the main entrance to the store and at a curb cut which created an opening in the curb. The opening permitted the sidewalk to slope downward creating a slight ramp connecting the asphalt of the parking lot with the cement of the sidewalk. The design of the curb cut and the sloped ramp to the parking lot was intended to permit easier access to the sidewalk for persons who are incapacitated or who use shopping carts and baby strollers. In order to alert patrons of the store and others to the curb opening, the curb at the edge of the sidewalk was painted yellow.
After her fall, Moylan was taken to the hospital where she was diagnosed with a broken shoulder. Her shoulder could not be immediately repaired, and the delay caused Moylan to endure days of pain while awaiting surgery. In addition, Moylan suffered an infection following the surgery and required two blood transfusions. Moylan also suffered a black eye and bruising to her left knee as a result of her fall.
DISCUSSION A. Standard of Review
Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56 (c); Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232 (1997). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and showing that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson_v. Time, Inc., 404 Mass. 14, 16-17 (1989). If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a material fact in order to defeat the motion. Pederson, 404 Mass. at 17.
B. Harvey's Negligent Failure to Supervise
In order to prevail on a claim of negligence, Moylan must demonstrate that 1) there was a duty or standard of care owed to her by Harvey; 2) Harvey's conduct constituted a breach of such duty or violation of such standard of care; 3) Harvey's conduct was the proximate cause of her harm; and 4) she suffered actual harm. See Bennett v. Eagle Book Country Store, Inc., 408 Mass. 355, 358 (1990) (citations omitted). In addition, to establish the standard of care applicable to professionals and to prevail upon the assertion that the standard was breached, a plaintiff must offer expert testimony from a member of the profession. See Atlas Truck Corp. v. Donabed, 47 Mass. App. Ct. 221, 227 n. 4 (1999). At bar, there is no showing that plaintiff has obtained, or likely will obtain, expert testimony to support her claims against Harvey. Therefore, Harvey's Motion for Summary Judgment is ALLOWED .
C. Stop Shop's Negligent Failure to Maintain
To prevail on a claim of negligent failure to maintain and inspect the ramp in front of the store, Moylan must show that 1) there was a duty or standard of care owed to her by Stop Shop; 2) Stop Shop's conduct constituted a breach of such duty or violation of such standard of care; 3) Stop Shop's conduct was the proximate cause of her harm; and 4) she suffered actual harm. See Bennett, supra, at 358. It is clear that Moylan's status, at the time of her injury, was as a business invitee. See Mounsey v. Ellard, 363 Mass. 693 (1973) (adopting the "economic benefit" theory which assigned invitee status by reason of the potential economic benefit the occupier may receive from the invitee's presence.).
The duty owed to a business invitee is a duty to use "reasonable care . . . [to] [keep] [the] [premises] [in] [a] reasonably safe condition, or at least to warn . . . against any dangers attendant upon such use that were not known to him or obvious to an ordinarily intelligent person, and either were known or in the exercise of reasonable care should have been known to the defendant." Fulton v. Edison Elec. Illuminating Co., 303 Mass. 258, 263 (1939) (citations omitted). Stop Shop was under no duty to warn Moylan of an open and obvious condition near the entrance of the store. At bar, there is no evidentiary dispute that the curb opening was an open and obvious condition well within the ken of Moylan at the time she fell. Under the Fulton precedent, Stop Shop had no duty to warn Moylan of dangers, if any, posed by the curb cut.
Further, Massachusetts case law provides that "customers entering or leaving stores cannot be unmindful of these almost universally prevailing conditions." Hoyt v. Woodbury, 200 Mass. 343, 345 (1909). See also,Brooks v. Sears, Roebuck Co., 302 Mass. 184, 186-87 (1939) (holding that defendant was not liable for plaintiff's accident since plaintiff should have realized that wooden curbs are customarily placed in parking lots in Massachusetts in order to facilitate orderly parking). The instant summary judgment record indicates that Moylan had visited this Stop Shop store location many times before the slip and fall occurred. It is a fair inference that Moylan was aware of the curb cut based on her previous visits to the Stop Shop store, and there was thus no duty on the part of Stop Shop to warn Moylan of such conditions. Nor has Moylan offered any evidence that the curb cut was maintained in other than a "reasonably safe condition." Fulton, supra, at 263. There is, therefore, no genuine issue of material fact as to Count XV and Stop Shop's Motion for Summary Judgment thereupon is ALLOWED .
D. Stop Shop's Negligent Installation
Moylan contends that Stop Shop was negligent in failing to install handrails along the "ramp" or curb cut. She also claims that the failure to install handrails constitutes a violation of 521 CMR § 24.5.1. It is clear from the language of 521 CMR § 24.5.1, however, that the regulation does not implicate curb cuts and is intended to govern lengthier "ramps" than that at issue in the instant matter. The provision is, therefore, inapplicable to the present case. In addition, in order to demonstrate that Stop Shop breached a duty of care by failing to install handrails, Moylan will need to provide expert testimony to that effect. See Atlas Truck Corp, supra, at 227 n. 4. There is nothing in the present record suggesting that such expert testimony will be offered at trial. Therefore, summary judgment is ALLOWED in favor of Stop Shop upon Count XVI.
E. Stop Shop's Negligent Failure to Supervise
In order to prevail on a claim of negligent supervision, Moylan must demonstrate that 1) there was a duty or standard of care owed to her by Stop Shop in connection with the market's supervision of the construction of the curb cut; 2) Stop Shop's conduct constituted a breach of such duty or violation of such standard of care; 3) Stop Shop's conduct was the proximate cause of her harm; and 4) she suffered actual harm. See Bennett, supra, at 358. To establish the standard of care required of supervisors of construction and the breach thereof, Moylan must produce expert testimony in support of her claims. See Atlas Truck Corp., supra, at 227 n. 4. The instant summary judgment record does not foreshadow that such expert evidence will be adduced at trial. Therefore, Stop Shop's Motion for Summary Judgment as to Count XVII is ALLOWED .
F. Stop Shop's Respondeat Superior Liability
Moylan contends that Stop Shop is responsible for the acts and omissions of its employees under the doctrine of respondeat superior. Because the Rule 56 proceedings reveal no evidence of negligence by Stop Shop's agents or employees in connection with the injuries suffered by Moylan, the doctrine of respondeat superior can visit no vicarious liability upon Stop Shop. The motion by Stop Shop for summary judgment upon Count XVIII is, therefore, ALLOWED .
ORDER
For the foregoing reasons, Defendant Francis Harvey Sons's Motion for Summary Judgment as to Count XI and Defendant Stop Shop's Motion for Summary Judgment as to Counts XV, XVI, XVII, and XVIII are ALLOWED .
___________________ Daniel F. Toomey Justice of the Superior Court
DATED: March 14, 2001