Opinion
No. 16–P–424.
01-06-2017
James HILDRETH v. PRRC, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Plaintiff James Hildreth, individually and as personal representative of the estate of Patricia A. Hildreth, appeals from the involuntary dismissal of his negligence claims against defendant PRRC, Inc., doing business as Price Rite of Fall River (Price Rite). We affirm.
Background. On October 26, 2007, the plaintiff and his wife Patricia were shopping at the Price Rite. Price Rite is a self-service supermarket wherein customers place groceries into their carts, proceed to checkout lines, and place their items onto a conveyer belt. A cashier scans the items and places them into another shopping cart, and the customer can choose whether or not to bag the items. Cashiers do not bag groceries, but customers can purchase bags for ten cents each and utilize a self-bagging area. While the plaintiff waited in line to purchase groceries, Patricia walked through an empty checkout line toward the exit. As she did so, she slipped on a piece of lettuce and fell. Patricia was unable to get up and was taken to the hospital with serious injuries to her left shoulder.
In September, 2010, the plaintiff and Patricia brought suit against Price Rite, alleging that it was negligent in its mode of operation because it does not bag all lettuces. Price Rite answered and demanded a jury trial on all claims. In December, 2012, the parties received notice that a jury trial was scheduled to take place in June, 2013. In June, 2013, the parties moved jointly to continue the trial. Jury trials rescheduled for August 12, 2013, and September 30, 2013, did not occur, and, in 2014, Patricia passed away. The plaintiff filed an amended complaint substituting himself as the party plaintiff, see note 1, supra, and demanding "trial by [j]udge, not [j]ury," on each of his claims. Price Rite again answered and demanded a jury trial. In a notification dated November 19, 2014, the parties received notice "to appear ... for: TRIAL: non-jury" on May 26, 2015.
Six days before the trial was scheduled to begin, the plaintiff moved to continue because he "wishes to have [t]rial by [j]ury." The motion was not docketed, there is no certificate of service in the record, and a disposition of the motion, if one occurred, was not docketed. Instead, on May 26, 2015, the clerk called the case for trial and both parties agreed, on the record, that it was jury waived. Trial proceeded and the plaintiff presented his case over the course of six days.
After the plaintiff rested, Price Rite moved for involuntary dismissal pursuant to Mass.R.Civ.P. 41(b)(2), 365 Mass. 803 (1974). In his written findings of fact, rulings of law, and order for judgment, the judge found that it was reasonably foreseeable that substances could fall to the floor and create a dangerous condition as a result of Price Rite's self-service mode of operation. However, because the plaintiff "offered no credible evidence that store employees failed to inspect the store on the day of the accident, that the store was inadequately staffed or that its policies were deficient," the judge found that there was "insufficient evidence ... to infer that Price Rite was negligent." Judgment entered for Price Rite, and the plaintiff appeals, arguing, for the first time, that he was denied the right to a jury trial. The plaintiff claims error in three of the judge's evidentiary rulings, and in allowance of the rule 41 motion.
Discussion. 1. Jury trial. The plaintiff's first claim of error lacks merit. He specifically and repeatedly demanded trial by a judge. The parties received notice in November of 2014, that a jury-waived trial would take place in May of 2015, yet "the [plaintiff] made no complaint, and no effort to have the case retransferred to the list of cases for trial by jury until the case was actually reached for trial." Stevens v. McDonald, 173 Mass. 382, 384 (1899). The plaintiff's last-minute motion for a jury trial was not made under Mass.R.Civ.P. 38(b), 365 Mass. 800 (1974), or filed as required by Mass.R.Civ.P. 5(d), as amended, 404 Mass. 1401 (1989), and he never requested a ruling thereon. Moreover, both parties consented, on the record, to proceeding before the judge. Any right to a jury trial was waived. See Mass.R.Civ.P. 38(d), 365 Mass. 800 (1974); Mass.R.Civ.P. 39(a), as amended, 450 Mass. 1403 (2008). See also Northeast Line Constr. Corp. v. J.E. Guertin Co., 80 Mass.App.Ct. 646, 651–653 (2011).
2. Evidentiary rulings. The plaintiff argues error in the exclusion of portions of Price Rite manager Kevin Amaral's deposition testimony. The judge excluded as irrelevant questions relating to the packaging of green beans. There was no objection to his ruling, and "[t]here was no abuse of discretion." Haddad v. Wal–Mart Stores, Inc. (No. 1), 455 Mass. 91, 112 (2009). "The test of relevance is whether the evidence offered rationally tends to prove the proposition at issue." Commonwealth v. Soares, 384 Mass. 149, 161 (1981). We agree with the judge that evidence of green bean packaging has no rational tendency to prove that failing to wrap all lettuces constitutes negligence.
In response to Price Rite's objection, the judge ruled:
"Well, I've been laboring under the apprehension ... that the claim here was that the plaintiff ... slipped on lettuce, alright. Now, the mode of operation analysis really comes down to this: [i]s it a self-service type of operation? Because if it is a self-service type of operation, then it is foreseeable that customers will mishandle product and it will fall to the floor. So I don't know what difference it makes if it's lettuce or green beans, and there been [no] talk with green beans. And the theory, as I understood it from your expert ... is that all lettuce, I think he was talking about, has to be bagged. Iceberg lettuce is; romaine lettuce wasn't. I believe he said the standard of care at the time was not to bag romaine lettuce; I believe that was his testimony. So I don't know why you want me to get into green beans; I guess what you want me to do is speculate if it wasn't lettuce, it could have been a green bean."
Exclusion by the judge of Amaral's answer to a question, posed to him by plaintiff's counsel at deposition, was consistent with his prior ruling. There was no error, where the opinion called for by the question was not "a matter of common observation by a lay person," Brown v. United States Fid. & Guar. Co., 336 Mass. 609, 614 (1958), and there was no evidence that Amaral was qualified to render it. See Maniscalco v. Director of the Div. of Employment Security, 327 Mass. 211, 215 (1951) (evidence that is "nothing more than a guess or speculation ... must be put out of the case"). Finally, the judge correctly excluded Price Rite's denials of the plaintiff's requests for admissions. Gutierrez v. Massachusetts Bay Transp. Authy., 437 Mass. 396, 413–414 (2002).
"[Does] either lettuce or beans create any heightened risk of somebody falling and hurting" herself?
We decline the plaintiff's invitation to overrule Gutierrez.
--------
3. Rule 41 motion. The judge found that Price Rite maintained a self-service operation and that it was reasonably foreseeable that substances would fall to the floor. We accept his findings "as true unless they are clearly erroneous." Kendall v.. Selvaggio, 413 Mass. 619, 620 (1992). The plaintiff does not argue that the judge's findings are erroneous; rather, he challenges the judge's conclusion that there was insufficient evidence that Price Rite was negligent. We review de novo the judge's conclusions of law. Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014).
In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 786 (2007), the Supreme Judicial Court adopted the mode of operation approach to premises liability whereby "a store owner could be held liable for injuries to an invitee if the plaintiff proves that the store owner failed to take all reasonable precautions necessary to protect invitees from ... foreseeable dangerous conditions." The plaintiff argues that Price Rite "failed to take all reasonable precautions necessary," ibid., because it did not bag all types of lettuce. However, his expert testified that it was industry standard in 2007 not to wrap a single head of romaine lettuce. Nothing in Sheehan changed the law "that plaintiffs must demonstrate ... that the defendant failed to adhere to an applicable standard of care," Frullo v. Landenberger, 61 Mass.App.Ct. 814, 817 (2004), and the mode of operation approach to premises liability "does not make the owner of a self-service ... grocery store an insurer against all accidents," Sheehan, supra at 790. The Sheehan court rejected the strict liability the plaintiff here seeks to impose, and we see no error in the judge's conclusion that there was insufficient evidence that Price Rite "acted unreasonably in the circumstances." Ibid.
Judgment affirmed.