Oliveri v. Massachusetts Bay Transportation Authority, 292 N.E.2d 863, 864-65 (Mass. 1973) (internal citations omitted); see also Kelleher v. Dini's, Inc., 118 N.E.2d 77, 78 (Mass. 1954); Dos Santos v. Stop Shop Supermarket Co., 1996 WL 729933 *2 (Mass.App. Ct.); Wallace v. Building 19, Inc., 1996 WL 27064 *2 (Mass.App. Ct.); Moreau v. Shaw's Supermarkets, Inc., 1994 WL 722821 *1 (Mass.App.Ct.); Welch v. Angelo's Supermarket, Inc., 534 N.E.2d 821, 822 (Mass.App.Ct. 1989). Here, the record indicates that Defendant did not discover the plastic bag on the stairway prior to Plaintiff's accident.
April 26, 1989Further appellate review denied: Reported below: 27 Mass. App. Ct. 1106 (1989).
The plaintiff must identify the hazardous condition that caused him to slip, prove that it was present prior to his injury, and demonstrate that the defendant either caused the substance to be there, had actual knowledge of its existence, or had a reasonable opportunity to discover and remedy it. See Deagle v. Great Atl. Pac. Tea Co., 343 Mass. 263, 264-265 (1961); Oliveri v. Massachusetts Bay Transp. Authy., 363 Mass. 165, 167 (1973); Welch v. Angelo's Supermkt., Inc., 27 Mass. App. Ct. 1106, 1106 (1989). While these principles are applied most often in cases against premises owners and lessors, they pertain equally to the plaintiff's case against Frade's, which is predicated upon negligent inspection and maintenance of the compactor and not upon any theory of product liability.
Deagle v. Great Atl. Pac. Tea Co., 343 Mass. 263, 265 (1961). Liability will only attach if the plaintiff establishes by a preponderance of the evidence that the foreign substance was there long enough that the defendant's employees should have seen it and cleaned it up. See Welch v. Angelo's Supermarket, Inc., 27 Mass. App. Ct. 1106, 1106 (1989). Here, the defendant makes a plausible argument that store employees could not have known of the melting ice or had an opportunity to remove accumulated water.
See Callahan v. Boston Edison Company, 24 Mass. App. Ct. 950, 952 (1987). The mere fact that the foreign substance has dirt in it does not, standing alone, support an inference that it was present on the floor long enough for the defendants' employees to have discovered it. Oliveri, supra, 363 Mass. 170; Thornton v. First National Stores, Inc., 340 Mass. 222, 226 (1960); Welch v. Angelos Supermarket, 27 Mass. App. Ct. 1106 (1989). The plaintiff relies on Thurlow v. Shaw's Supermarkets, Inc., 49 Mass. App. Ct. 175 (2000), where the Appeals Court upheld a judgment for the plaintiff following a jury waived trial based on findings of fact by the trial judge that the evidence warranted an inference that the water on the floor resulted from slowly dripping overflow of melted ice from a non-refrigerated unit filled with ice, and that such a process would take sufficient time for water to accumulate so that it was reasonable to charge the defendant with constructive notice.
See Callahan v. Boston Edison Company, 24 Mass. App. Ct. 950, 952 (1987). The mere fact that the foreign substance has dirt in it does not, standing alone, support an inference that it was present on the floor long enough for the defendants' employees to have discovered it. Oliveri, supra, 363 Mass. 170; Thornton v. First National Stores, Inc., 340 Mass. 222, 226 (1960); Welch v. Angelos Supermarket, 27 Mass. App. Ct. 1106 (1989). The plaintiff relies on Thurlow v. Shaw's Supermarkets, Inc., 49 Mass. App. Ct. 175 (2000), where the Appeals Court upheld a judgement for the plaintiff following a jury waived trial based on findings of fact by the trial judge that the evidence warranted an inference that the water on the floor resulted from slowly dripping overflow of melted ice from a non-refrigerated unit filled with ice, and that such a process would take sufficient time for water to accumulate so that it was reasonable to charge the defendant with constructive notice.
"Liability will only attach if the plaintiff establishes by a preponderance of the evidence that the foreign substance was there long enough that the defendant's employees should have seen it and cleaned it up." Thurlow, supra, citing Welch v. Angelo's Supermarket, Inc., 27 Mass. App. Ct. 1106, 1106 (1989). Based on the testimony at trial, there is no evidence to support a conclusion that the cashier located behind the cash register could have noticed water on the floor where the complainant was standing.
She advanced no evidence warranting a trial on the merits on the critical question of whether the described floor condition resulted from any negligent act or omission of the defendant's. See, e.g., Welchv. Angelo's Supermarket, Inc., 27 Mass. App. Ct. 1106 (1989) (evidence of wet-appearing vegetable matter on supermarket floor in produce department insufficient to defeat summary judgment absent evidence of defendant's negligent failure to discover and remedy same). Even when viewed with "appropriate indulgence" in the plaintiff's favor, Castillo v. Massachusetts Gen. Hosp., 38 Mass. App. Ct. 513, 516 (1995), the Rule 56 materials herein demonstrate that the plaintiff has "no reasonable expectation" of establishing an essential element of her negligence claim, and that summary judgment was thus properly entered for the defendant Kourouvaciis v. General Motors Corp., 410 Mass. 706, 716 (1991).
In order to recover, the plaintiffs must demonstrate that Empire (or the MBTA) knew or should have known of the presence of the paper on the stairway and failed to remove it within a reasonable time. Oliveri v. Massachusetts Bay Trans. Authy., 363 Mass. 165, 167 (1973); Welch v. Angelo's Supermarket, Inc., 27 Mass. App. Ct. 1106 (1989) (summary judgment for defendant affirmed where no evidence presented concerning length of time green vegetable matter had lain on floor before plaintiff fell). See Sahagan v. Commonwealth, 25 Mass. App. Ct. 953, 953-54 (1988) (defendant entitled to directed verdict where plaintiff, who struck non-rusty metal sign post stump on bike path maintained by the MDC, presented no evidence from which one could infer that the defendant either created the defective condition, was informed of it, or should have known about it).
See Ventor v. Marianne, Inc., supra at 226. The presence of the soap film and the description in the record of its size, shape and color fail to support an inference that the defendant's employees had a reasonable time in which to discover the substance and clean it up. Welch v. Angelo's Supermarket, 27 Mass. App. Ct. 1106, 1106 (1989). Contrast Berube v. Economy Grocery Stores, 315 Mass. 89, 92 (1943) (grimy, black squash); Anjou v. Boston Elev. Ry., 208 Mass. 273, 274 (1911) (gritty, flattened, black banana peel).