Opinion
11-P-614
12-08-2011
DENISE G. BOLAFKA & another v. SPG ARSENAL LP.
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
The plaintiff, Denise G. Bolafka, appeals from a grant of SPG Arsenal LP's motion for summary judgment. On appeal, Bolafka claims that the judge failed to properly follow the Supreme Judicial Court (SJC) decision of Papadopoulos v. Target Corp., 457 Mass. 368 (2010). We affirm.
The plaintiff's husband, Michael Bolafka, joined in the suit, claiming loss of consortium. Because his claim was entirely dependent on the viability of his wife's claim, we refer to a single plaintiff in this memorandum and order. See Papadopoulos v. Target Corp., 457 Mass. 368, 369 n.4 (2010).
Bolafka slipped and fell on December 11, 2004, while entering the Arsenal Mall (mall), owned by the defendant. It is undisputed that Bolafka slipped on rain water that was tracked in by other customers entering the mall. The Superior Court judge found that the instant case was controlled by Wexler v. Stanetsky Memorial Chapel of Brookline, Inc., 2 Mass. App. Ct. 750 (1975), and not Papadopoulos, supra, as Bolafka argues. We agree. In Papadopoulos, supra, the SJC eliminated the long-standing rule for determining liability of a landowner for injury resulting from snow or ice. Id. at 369. The SJC abolished 'the distinction between natural and unnatural accumulations of snow and ice, and appl[ied] to all hazards arising from snow and ice the same obligation of reasonable care that a property owner owes to lawful visitors regarding all other hazards.' Ibid. From this language, Bolafka argues that the SJC also intended to abolish the transitory water rule set out in Wexler, supra at 751. We disagree.
In Wexler, the plaintiff slipped and fell on rain water that had accumulated in the entrance of a funeral home. Ibid. As we had held before, it was 'a case in which 'the transitory conditions of [the] premises, due to normal use in wet weather, according to ordinary experience could not in reason have been prevented." Ibid., quoting from Lanagan v. Jordan Marsh Co., 324 Mass. 540, 542 (1949). See Moors v. Boston Elev. Ry., 305 Mass. 81, 82-83 (1940); Faulkner v. J.H. Corcoran & Co., 342 Mass. 94, 95-96 (1961).
The facts in this case are almost identical to those in Wexler, with the exception of the location of the injury. There is no evidence that the amount of water on the floor was due to a defect in the floor, or that the floor material was more prone to become slippery when wet. Nor was there any evidence that the defendant had notice of a condition that had become more than transitory in nature. There is also no assertion that the defendant's actions contributed to the accident. '[A]n inference of negligence did not arise, even though a business visitor slipped and fell upon tile flooring which was slippery when wet, in the absence of evidence that the injury was caused by a defect, or wear, or other condition not natural to the flooring.' Lowe v. National Shawmut Bank of Boston, 363 Mass. 74, 77 (1973).
Papadopoulos is not so expansive that it eliminated the transitory condition analysis set forth in Wexler. The SJC made no mention of Wexler, or of the analysis applied to the transitory condition of rain water. The SJC did, however, explicitly state it was abolishing 'the distinction between natural and unnatural accumulations of snow and ice' (emphasis added). Papadopoulos, supra at 369. We decline to extend this ruling to the present facts.
Judgment affirmed.
By the Court (Grasso, Smith & Meade, JJ.),