Wakim v. Ambius, Inc.

Full title: SUSAN WAKIM & another v. AMBIUS, INC., & others.

Court: COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Jan 26, 2017

75 N.E.3d 1150 (Mass. App. Ct. 2017)

Opinion

15-P-1695

01-26-2017

Susan WAKIM & another v. AMBIUS, INC., & others.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs, Susan Wakim and John Wakim, brought this action alleging that plaintiff Susan Wakim fell at the Northshore Mall as the result of slipping on water. The plaintiffs have alleged that this water was on the mall floor due to the negligence of defendant Ambius, Inc. (Ambius), which was responsible for watering the plants located in the mall. A Superior Court judge allowed summary judgment for all the defendants, and this appeal followed. We affirm.

Here, applying the traditional approach to slip and fall cases, see Sheehan v. Roche Bros. Supermkts., Inc ., 448 Mass. 780, 782-783 (2007) (Sheehan ), the judge held that the plaintiffs failed to present any evidence that would allow a reasonable jury to conclude that the defendants knew or should have known that the substance on which the plaintiff allegedly slipped was on the mall floor. We agree.

In support of the plaintiffs' allegation that the substance on the floor appeared during the watering process, the plaintiffs rely on the hearsay statement of Steve Igo that Ambius had recently watered the plants prior to Susan Wakim's fall.⁴ To surmount this evidentiary deficiency, the plaintiffs claim that Igo's statement was attributable to the defendants as a statement of an agent or servant concerning a matter within the scope of the agency or employment. See Ruszcyk v. Secretary of Pub. Safety , 401 Mass. 418, 424 (1988) ; Mass.G.Evid. § 801(d)(2)(D) (2016). We disagree.

4 In Igo's deposition, he provided no support for this statement and could not recall having made it.

Igo was the daytime supervisor of security employed by Allied Barton Security Services; he is not an employee of any of the defendants. As the proponent of the evidence, the plaintiffs had the burden of proving the foundational facts required for the statement's admission, and this they did not do. On this record, the plaintiffs have failed to establish that Igo was an agent authorized to make statements on behalf of the defendants, as required for an admission by a party opponent. Mass.G.Evid. § 801(d)(2)(C). See Herson v. New Boston Garden Corp ., 40 Mass. App. Ct. 779, 791 (1996).

Even if Igo were considered an agent, and his statement were admissible against the defendants, "[u]nder the traditional approach to premises liability, the plaintiff is required to prove [the] store caused a substance, matter, or item to be on the floor; the store operator had actual knowledge of its presence; or the substance, matter, or item had been on the floor so long that the store operator should have been aware of the condition." Sheehan , supra . With an absence of evidence supporting the defendants' actual knowledge of the water on the floor, the plaintiffs instead claim that the defendants had constructive knowledge. We disagree.

Constructive notice or knowledge can be established by evidence indicating the length of time the water was on the mall floor. See Oliveri v. Massachusetts Bay Transp. Authy ., 363 Mass. 165, 167 (1973) ; Bowers v. P. Wile's, Inc ., 475 Mass. 34, 38 (2016). Using this analysis, the plaintiffs would be required to establish notice by showing that, based on the length of time the water had been on the floor, the defendants should have discovered it. See ibid .

Here, however, there was no evidence in the record that indicated how long the water was on the floor or how it came to be there. As there was no evidence to prove that the defendants either knew or should have known of the existence of the water, or that they failed to remedy the condition given a reasonable length of time, summary judgment was appropriate for the defendants under the traditional approach to premises liability. See Gallagher v. Stop & Shop, Inc ., 332 Mass. 560, 563 (1955).

Under a "mode of operation" approach, the plaintiffs fare no better. Under this analysis, the plaintiffs may satisfy the notice requirement by showing that the injury was attributable to a reasonably foreseeable unsafe condition related to the owner's chosen mode of operation. See Sheehan , 448 Mass. at 786. Thus, as a starting point, Ambius, Simon Property Group, Inc., and Unicco Service Co., Inc., are not the owners of the mall, and may not be held liable under the mode of operation approach.⁵

5 Furthermore, while Ambius was an independent contractor, it was under the direction and control of the mall owner pursuant to the contract for services. The regular watering of plants in the mall by Ambius, which does not involve intervention by a third party, is not a mode of operation, for purposes of the mode of operation doctrine. Sarkisian v. Concept Restaurants, Inc ., 471 Mass. 679, 684 (2015). See Sheehan , 448 Mass. at 791.
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Although the Mall at Northshore, LLC, is the owner of the mall, more than mere ownership must be shown before mode of operation applies. To prevent mode of operation from imposing strict liability on owners, "the court in Sheehan limited the mode of operation approach to situations where a business should reasonably anticipate that its chosen method of operation will regularly invite third-party interference resulting in the creation of unsafe conditions, and a visitor suffers an injury after encountering the condition so created." Sarkisian v. Concept Restaurants, Inc ., 471 Mass. 679, 684 (2015). See Sheehan , supra at 791. In order for owners to reasonably anticipate the occurrence of unsafe conditions, the mode of operation must involve recurring dangerous conditions brought about by a third party. See Sarkisian v. Concept Restaurants, Inc ., supra at 686 ("It was reasonably foreseeable that such a mode of operation would result in a recurring theme of cups being jostled and liquid being jettisoned by patrons onto the dance floor"). See also Sheehan , supra at 792 (there must be evidence "that the owner could reasonably foresee or anticipate that the dangerous condition regularly occurs").

Here, there was no evidence that Ambius's watering of the plants resulted in water regularly being present on the mall floor. In fact, the evidence from depositions indicates that not only was this not a recurring event, but that water had never before been observed on the floor following watering by Ambius. As such, the "mode of operation" approach is inapplicable in the circumstances of this case, and summary judgment was properly allowed for the defendants.

Judgment affirmed .