102 N.E.3d 1033
Mass. App. Ct.2018Background
- Donna Katin slipped and fell in a Stop & Shop on March 25, 2010 after stepping on a freestanding advertising sign that was lying face down on the floor in the bread aisle.
- Katin had been in the store under two minutes; another customer picked up the sign and showed it to her; the side facing up was white and blended with the floor.
- The sign appeared "very clean" with no dirt, footprints, or marks; Katin did not know how long it had been on the floor.
- Store manager D'Amato testified the sign could not have fallen out of its steel freestanding frame on its own, supporting third-party interference as a possibility.
- Katin reported the incident to store personnel but did not follow up; the sign was lost or discarded during the nearly three-year interval before she filed suit in 2013.
- The trial judge granted summary judgment for Stop & Shop, finding Katin could not prove notice under the traditional theory and the mode-of-operation theory did not apply; Katin appeals.
Issues
| Issue | Katin's Argument | Stop & Shop's Argument | Held |
|---|---|---|---|
| Whether Stop & Shop had constructive notice of the fallen sign under traditional premises-liability rules | The sign’s presence and store policy requiring employees to pick up hazards permit an inference the sign was on the floor long enough to charge constructive notice | No evidence the sign had been on the floor sufficiently long; its clean appearance shows it was recent and the store only had duty to discover hazards within a reasonable time | Judgment for Stop & Shop — Katin cannot reasonably expect to prove actual or constructive notice under traditional theory |
| Whether spoliation of the sign warrants an adverse inference or sanctions | Loss of the sign justifies an adverse inference that it had been on the floor long enough to prove notice | Katin failed to show the elements of spoliation (intentional/negligent destruction knowing litigation was likely) or prejudice from loss | Judgment for Stop & Shop — Katin did not adequately raise spoliation; judge did not abuse discretion in finding no prejudice |
| Whether the mode-of-operation theory relieves Katin of proving notice by showing the danger was tied to Stop & Shop’s self-service mode | The freestanding advertising sign in a self-service grocery created a foreseeable, recurring risk of customers knocking signs down, so mode-of-operation applies | Even if third-party interference is plausible, Katin offered no evidence that fallen signs were a recurring risk tied to Stop & Shop’s mode of operation | Judgment for Stop & Shop — no evidence the hazardous condition was a recurring feature of the store’s operation |
| Whether summary judgment was appropriate overall | The record permits reasonable inferences supporting a jury trial on notice under one or both theories | The record lacks evidence of actual/constructive notice or recurring risk; summary judgment proper | Affirmed — summary judgment for defendant affirmed |
Key Cases Cited
- Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780 (2007) (sets traditional notice rules where spillage or items on floor require proof of actual, caused, or long-standing presence)
- Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679 (2015) (explains and limits mode-of-operation theory to recurring risks tied to the proprietor’s chosen operation)
- Bowers v. P. Wile's, Inc., 475 Mass. 34 (2016) (applies mode-of-operation where record shows employer knew of recurring risk tied to operation)
- Sheehan-related precedent: Gallagher v. Stop & Shop, Inc., 332 Mass. 560 (1955) (examples of inferring constructive notice from physical condition)
- Petrell v. Shaw, 453 Mass. 377 (2009) (summary-judgment standard where plaintiff cannot reasonably expect to prove essential element)
- Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124 (1998) (spoliation sanctions only for negligent or intentional loss when litigation was reasonably foreseeable)
- Scott v. Garfield, 454 Mass. 790 (2009) (spoliation requires judge to find foreseeability and fault before adverse inference)
- Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223 (2003) (prejudice to the nonspoliating party is an element for spoliation remedies)