Opinion
14-P-565
04-17-2015
GAIL PAPADOPOULOS, executor, & another. v. TARGET CORPORATION.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal involves an accident in which an elderly man was seriously injured after tripping on a piece of ice in a store parking lot. The case has a lengthy procedural history, including a prior appeal in which the Supreme Judicial Court abolished the long-standing distinction between natural and unnatural accumulations of snow and ice as a factor in determining negligence on the part of property owners. Papadopoulos v. Target Corp., 457 Mass. 368, 369 (2010) (Papadopoulos I). After remand and a trial in the Superior Court, a jury found the defendant eighty percent negligent and awarded damages to the plaintiffs. An amended judgment entered on the jury's verdict. The judge, however, allowed the defendant's motion for judgment notwithstanding the verdict. The plaintiffs appeal from that decision.
Background. Considering the evidence in the light most favorable to the plaintiffs, the jury could have found the following facts. On December 30, 2002, Emanuel Papadopoulos fell and fractured his hip in the parking lot of the Target store at the Liberty Tree Mall in Danvers. Although it did not snow that day, it was cold and about two feet of snow had fallen during the previous month or so. Around 6:00 A.M., the defendant's snow removal contractor inspected the lot, and around 7:00 A.M. applied both salt and sand. The contractor did not report any snow or ice hazards to the defendant. An employee of the defendant was also charged with inspecting the parking lot before the store's opening, while employees who retrieved shopping carts were expected to look for snow and ice hazards throughout the day. The defendant received no reports of any such hazards from its employees.
The jury found no negligence on the part of the snow removal contractor, although it did find Papadopoulos to be twenty percent negligent.
Sometime around 11:00 A.M., Papadopoulos drove himself to the store. Papadopoulos was seventy-six years old at the time and had a handicapped parking placard because he suffered from asthma. He also walked with a limp, suffered from severe, chronic osteoarthritis in both knees, and previously had total bilateral knee replacements. That morning, Papadopoulos wore "very good" rubbers with "a lot of tread" over his shoes. He parked in the first handicap spot adjacent to the median strip that separated the parking area from the fire lane directly in front of the store.
As he exited his car, Papadopoulos noticed snow piles on top of the median strip that were approximately two feet tall. He also observed a large icy area that extended from the median, but at a distance of four or five feet from his car. While walking to the store, he avoided the icy area and a conspicuous piece of ice, which he described as being about one-half the size of a football. After spending about one-half an hour shopping, Papadopoulos left the store with a small bag of merchandise.
While walking through the parking lot toward the rear of his car, Papadopoulos's foot got caught on a piece of ice. This caused him to lose his balance and fall, fracturing his right hip. Papadopoulos had not seen the piece of ice on which he tripped either when approaching the store or immediately before his fall. He described the piece of ice as about half the size of a soccer ball, black, and covered in snow and sand.
Papadopoulos and his wife, Annie Papadopoulos, subsequently filed suit against the defendant alleging negligence and loss of consortium.
Both Emanuel and Annie Papadopoulos died before trial. Gail Papadopoulos, as executrix of the estate of Emanuel Papadopoulos, and Irene Tsouvalas, as administratrix of the estate of Annie Papadopoulos, were substituted as plaintiffs.
Discussion. "Because the jury are a pillar of our justice system, nullifying a jury verdict is a matter for the utmost judicial circumspection." Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 350 (2008). In reviewing de novo a judgment notwithstanding a jury verdict, we thus consider the evidence in the light most favorable to the plaintiffs. Having done so, we must determine whether the jury reasonably could have returned a verdict for the plaintiffs on the evidence presented. In reviewing the evidence, we must ascertain "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 [plaintiffs]." Phelan v. May Dept. Stores Co., 443 Mass. 52, 55 (2004), quoting from Poirier v. Plymouth, 374 Mass. 206, 212 (1978). A judgment notwithstanding the verdict is nonetheless proper, however, when an "essential element of [the prevailing party's] case rests upon a 'mere scintilla' of evidence," Stapleton v. Macchi, 401 Mass. 725, 728 (1998), quoting from Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 59 (1948).
As a result of the Supreme Judicial Court's decision in Papadopoulos I, 457 Mass. at 369 property owners owe lawful visitors the same duty of reasonable care for hazards involving snow and ice as for all other types of hazards. This duty is thus not one of strict liability, "nor does it make a property owner an insurer of its [premises]." Id. at 384. To establish negligence, a plaintiff can show that a defendant either placed the snow or ice hazard where the accident occurred, knew of the existence of the snow or ice hazard, or should have known about the hazard because it was present "for such a length of time." See Oliveri v. Massachusetts Bay Transp. Authy., 363 Mass. 165, 167 (1973).
Here, the plaintiffs argue the trial court judge erred in granting judgment notwithstanding the verdict because a reasonable jury could have concluded that the piece of ice on which Papadopoulos tripped had been present for such a length of time that the defendant should have known about it and acted accordingly. We agree.
In granting judgment notwithstanding the verdict, the judge spent some time discounting Papadopoulos's speculation that the piece of ice on which he tripped formed as a result of runoff from nearby snow piles. While the cause and source of the piece of ice could be relevant to the issue of how long the ice was present, the absence of such evidence here did not prevent the jury from concluding -- based on other evidence -- that the ice was present long enough that the defendant should have known that the hazard existed. The other evidence here includes the condition of the piece of ice on which Papadopoulos tripped.
The fact that the ice was dirty, or "black" as Papadopoulos described it, could reasonably suggest that it had been trod upon or driven over, from which the jury could reasonably conclude that it had been there for some time. The judge dismissed the dirtiness of the ice as "not probative of an extended period of existence" and offered other potential explanations for it. In doing so, however, the judge moved from describing the evidence in the light most favorable to the plaintiffs toward engaging in her own less favorable characterization of the facts. While dirty ice is not definitively ice that has been present for a long period, it would nevertheless not be unreasonable for the jury to have considered the dirtiness of the ice as some evidence of how long it had been present. Moreover, the jury could reasonably infer from the condition of the ice that it had been present for some extended period of time.
While not addressed by the judge, Papadopoulos's additional description of the piece of ice as covered with snow and sand could also have been relevant to the jury's analysis. The jury could have reasonably inferred that the sand on the ice was the result of it having been present on the parking lot when the snow removal contractor spread salt and sand around 7:00 A.M. Taking the evidence in the light most favorable to the plaintiffs, the jury could thus reasonably have concluded that the black piece of ice, covered in sand and half the size of a soccer ball, had been on the lot for approximately four hours before Papadopoulos fell. As a consequence, the jury could also have reasonably determined that the defendant was negligent in failing to detect the piece of ice. In these circumstances, it cannot be said that an essential element of the plaintiffs' case rested upon a "mere scintilla" of evidence. Accordingly, we conclude that the judge erred in allowing the defendant's motion for judgment notwithstanding the verdict.
The order allowing the defendant's motion for judgment notwithstanding the verdict is reversed and a new order is to enter denying the motion. The amended judgment on the jury's verdict is reinstated.
So ordered.
By the Court (Rapoza, C.J., Cohen & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 17, 2015.