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Massachusetts (MA) Court Decisions concerning slip and fall and premises liability
“We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to “act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.” Young v. Garwacki, 380 Mass. 162, 169 (1980), quoting Sargent v. Ross, 113 N.H. 388, 397-398 (1973). See Reardon v. Shimelman, 102 Conn. 383, 388 (1925) (“The duty of the landlord being to exercise reasonable care to prevent the occurrence of defective or dangerous conditions in the common approaches, the fact that a particular danger arose from the fall of snow or the freezing of ice can afford no ground of distinction”). This introduces no special burden on property owners. If a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger. See Sheehan v. Roche Bros. Supermarkets, 448 Mass. 780, 782-784 (2007); Restatement (Second) of Torts § 343 (1965). See also Reardon v. Shimelman, supra at 389 (“an accumulation of ice or snow upon a common approach to a tenement house may impose upon the landlord a liability for injuries due to it, provided he knew, or in the exercise of a reasonable oversight ought to have known, of the existence of a dangerous condition and failed to exercise reasonable care to provide against injury by reason of it”).
384*384 Under this traditional premises liability standard, a fact finder will determine what snow and ice removal efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others. Mounsey, supra at 709. The duty of reasonable care does not make a property owner an insurer of its property; “nor does it impose unreasonable maintenance burdens.” Id. The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal. Therefore, while an owner of a single-family home, an apartment house owner, a store owner, and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them. See Restatement (Second) of Torts, supra at § 343 comment e.
The defendants have urged that, if we were to abolish the rule of natural accumulation, we should apply our new rule only prospectively. We conclude that the circumstances do not warrant an exception from the normal rule of retroactivity. “In general, changes in the common law brought about by judicial 385*385 decisions are given retroactive effect.” Halley v. Birbiglia, 390 Mass. 540, 544 (1983). See Tamerlane Corp. v. Warwick Ins. Co., 412 Mass. 486, 489 (1992); Schrottman v. Barnicle, 386 Mass. 627, 631 (1982). See also Tucker v. Badoian, 376 Mass. 907, 918-919 (1978) (Kaplan, J., concurring). “[T]he class of decisions given only prospective application is usually limited to contract and property law cases, in which reliance upon existing judicial precedent often influences individual action.” Halley v. Birbiglia, supra at 545, and cases cited. Reliance plays a much smaller part under tort law than under contract and property law, because it “would be unreasonable to assert that potential tortfeasors often reflect upon possible tort liability before embarking on a negligent course of conduct.” Id., quoting Payton v. Abbott Labs, 386 Mass. 540, 565-566 (1982). Therefore, changes to the common law that have the potential to expand tort liability should be limited to prospective application only where it is likely that decisions involving insurance coverage have been made in substantial reliance on the previously existing common law. See Payton v. Abbott Labs, supra at 566-567. Consistent with this practice, we did not limit to prospective application those decisions where we abolished the common-law distinctions in premises liability among licensees, invitees, tenants, or guests of tenants. See Young v. Garwacki, 380 Mass. 162, 172 (1980); King v. G & M Realty Corp., 373 Mass. 658, 663 n.9 (1977); Bouchard v. DeGagne, 368 Mass. 45, 49 (1975); Jordan v. Goddard, 14 Mass. App. Ct. 723, 730 (1982). See also Soule v. Massachusetts Elec. Co., 378 Mass. 177, 184-185 (1979) (applying retroactively new common-law rule imposing on property owners duty of reasonable care to child trespassers). We see no reason to limit our holding today to prospective application, where it is based on similar considerations.” http://scholar.google.com/scholar_case?case=11784063413267672032&q=slip+fall+premises+liability&hl=en&as_sdt=4,22&as_ylo=2010
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“Traditionally, in foreign substance slip and fall cases, to prove negligence a plaintiff had to `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.’ Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 337 (2003). Even assuming Curet could introduce admissible evidence that there was, in fact, cream on the aisle floor that caused him to slip, he cannot point to any evidence that Walgreens caused the cream to be there, knew of its existence, or had a reasonable opportunity to discover it.
Similarly unavailing is Curet’s contention that under the `mode of operation’ theory enunciated in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788-790 (2007), Walgreens can be charged with having knowledge of a dangerous condition on its premise, because cream on the floor is a `reasonably foreseeable dangerous condition . . . related to [Walgreens’s] self-service mode of operation.’ Id. at 786.”
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“As such, “it is necessary in determining whether the evidence was sufficient to warrant an inference that the defendant violated its duty of care to consider `whether the jury reasonably could have concluded that, in view of all the circumstances, an ordinarily prudent person in the defendant’s position would have taken steps, not taken by the defendant, to prevent the accident 791*791 that occurred.” Barry v. Beverly Enters.-Mass., 418 Mass. 590, 593 (1994), quoting Toubiana v. Priestly, 402 Mass. 84, 88-89 (1988). In particular, as is the case here, fruit and vegetable debris presents an obvious risk of injury to a customer, and a reasonably prudent person would not place these items in an aisle or allow them to remain there. Thus, because the determination of reasonableness is a question of fact, the trier of fact must determine whether the owner could reasonably foresee or anticipate that a foreseeable risk stemming from the owner’s mode of operation could occur and whether the owner exercised reasonable care in maintaining the premise in a safe condition commensurate with these foreseeable risks.
In sum, the adoption of the mode of operation approach will not modify the general rule governing premises liability requiring a plaintiff to prove that an owner had either actual or constructive notice of an unsafe condition on the premises. However, if a plaintiff proves that an unsafe condition on an owner’s premises exists that was reasonably foreseeable, resulting from an owner’s self-service business or mode of operation, and the plaintiff slips as a result of the unsafe condition, the plaintiff will satisfy the notice requirement. See Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 481 (2002); Jackson v. K-Mart Corp., 251 Kan. 700, 710 (1992). Additionally, a store owner will be liable to a plaintiff injured as a result of a dangerous condition caused by a third party only if the owner could reasonably foresee that the dangerous condition could occur, resulting from the owner’s chosen mode of operation, and the 792*792 owner took inadequate steps to forestall resulting injuries. See Chiara v. Fry’s Food Stores of Ariz., Inc., supra at 401; Jackson v. K-Mart Corp., supra; Canfield v. Albertsons, Inc., 841 P.2d 1224, 1226 (Utah Ct. App. 1992). Although the adoption of the mode of operation approach modifies prong (a) of the requirements of Restatement (Second) of Torts § 343 (1965), in order for liability to attach, prongs (b) and (c) must also be satisfied. That is, because the determination whether an owner exercised reasonable care in making the premises safe for invitees is a question of fact, it, then, becomes the task of the trier of fact to determine whether the owner could reasonably foresee or anticipate that the dangerous condition regularly occurs and whether the owner took all necessary reasonable precautions commensurate with the risks inherent in a self-service method of operation to protect individuals from such foreseeable risks. See Chiara v. Fry’s Food Stores of Ariz., Inc., supra; Meek v. Wal-Mart Stores, Inc., supra; Jackson v. K-Mart Corp., supra at 711; Pimentel v. Roundup Co., 100 Wash. 2d 39, 49 (1983).
Conclusion. For the foregoing reasons, we conclude that summary judgment was improperly granted and, given our adoption of the mode of operation approach, the defendant had notice of the inherent risks associated with its chosen mode of operation. We vacate the judge’s decision granting summary judgment in favor of the defendant and remand the case to the Superior Court for further proceedings consistent with this opinion.”