Summary
In Rando and Bolafka, the Appeals Court held that "Papadopoulos is not so expansive that it eliminated the transitory conditions analysis set forth in Wexler."
Summary of this case from Gomez v. United StatesOpinion
14-P-1015
05-15-2015
LEO RANDO v. CUMBERLAND FARMS, INC.
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
The plaintiff, Leo Rando, appeals from the allowance of the defendant's motion for summary judgment. Rando was injured when he slipped and fell on October 27, 2010, while entering a Cumberland Farms store located in Pittsfield. It is undisputed that it had rained earlier in the morning and the floor where Rando fell was wet from rain water tracked in by other customers. On the day in question, there was a mat on the floor inside the entrance and an orange warning cone had been placed on the floor just beyond the mat. Rando was walking with crutches and took three steps on the mat. When his crutches came into contact with the floor beyond the mat, his right crutch slipped, striking the orange cone, and he fell.
In July, 2004, Rando had a below-the-knee amputation of his right leg.
Relying on, and quoting from, Wexler v. Stanetsky Memorial Chapel of Brookline, Inc., 2 Mass. App. Ct. 750, 751 (1975), the judge concluded that "this is 'a case in which the transitory condition of the premises, due to normal use in wet weather, according to ordinary experience could not in reason have been prevented.'" The judge further observed that "[t]here is no evidence in the summary judgment record 'to indicate that the water on the floor was more than [what would] inevitably result[] from the trampling of many feet in such a place . . . under the conditions of weather then existing.' [Wexler, supra]." The judge also noted that the placement of the cone "does not present a dispute of material fact because, among other things, the cone was close enough to the plaintiff that he struck it with his crutch when he fell, and there is no evidence that a slight repositioning of the cone would have made a difference in the end result" (emphasis orginal), and that "there is undisputed evidence in the record that the defendant's employees mopped the area in question several times prior to the plaintiff's fall, indicating that they did what they could reasonably do to keep the area safe."
In Wexler, 2 Mass. App. Ct. at 751, quoting from Lanagan v. Jordan Marsh Co., 324 Mass. 540, 542 (1949), the court held that negligence on the part of the premises owner cannot be found where "transitory conditions . . . due to normal use in wet weather, according to ordinary experience could not in reason have been prevented."
Discussion. We review the grant of a motion for summary judgment de novo. American Intl. Ins. Co. v. Robert Seuffer GMBH & Co. KG, 468 Mass. 109, 113, cert. denied, 135 S. Ct. 871 (2014). Summary judgment is proper when, "viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). While summary judgment ordinarily is improper in negligence cases which are by nature fact specific, resolving a negligence claim as a matter of law may be appropriate "when no rational view of the evidence permits a finding of negligence." Patterson v. Christ Church, 85 Mass. App. Ct. 157, 159 (2014), quoting from Roderick v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994).
Rando's primary contention on appeal is that the Supreme Judicial Court's decision of Papadopoulos v. Target Corp., 457 Mass. 368 (2010), governs the analysis of this case and that the judge erred by applying the transitory conditions doctrine set forth in Wexler. We disagree.
In Papadopoulos, the Supreme Judicial Court eliminated the long-standing rule for determining liability of a landowner for injury resulting from snow or ice. Id. at 369. The court 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, Rando argues that the court also intended to abolish the transitory conditions rule set out in Wexler, supra at 751. First, Papadopoulos is not so expansive that it eliminated the transitory conditions analysis set forth in Wexler. Second, the facts in this case are very similar to those in Wexler. Here, as in Wexler, there is no evidence that the amount of water on the floor was due to a defect or that the floor material was more prone to become slippery when wet. See id. at 751-752. As Rando acknowledged at his deposition, the accumulated water was no more than one would typically expect to be tracked into a store during wet weather. Furthermore, while there was some evidence that water tended to accumulate near the doorway during a rainstorm, there is no evidence in the record that an unusual amount of water tended to collect or that any such collection of water was due to a defect in the flooring or premises. See ibid.
Finally, Rando claims that because the defendant failed to take reasonable steps to keep the area dry, the rule governing hazards caused by transitory conditions is not applicable. This argument fails for the reasons expressed by the judge. Rando's characterization of the frequency with which the floor was mopped raises no genuine issue of material fact and there is no indication that a different placement of the cone was required. Even viewing the evidence in the light most favorable to Rando, summary judgment was appropriate.
Judgment affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 15, 2015.