Opinion
No. 12–P–659.
2013-03-1
Therese H. VENEDIKIAN v. 101 MAIN STREET CONDOMINIUM TRUST.
By the Court (COHEN, GREEN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff was injured on January 7, 2004, when she slipped and fell on ice on the stairs outside the commercial building where she worked as a dentist. She filed suit on February 21, 2006, and a jury trial was held in October of 2008. After the parties rested, the defendant renewed its motion for a directed verdict. Ruling that the patch of ice on which the plaintiff fell was a natural accumulation of ice as a matter of law, the judge allowed the motion. Judgment entered on November 13, 2008. The plaintiff timely appealed. Through no fault of the plaintiff, the trial transcript was not received until April 1, 2012. The appeal entered in this court on April 19, 2012.
On July 26, 2010, while the case was pending, the Supreme Judicial Court decided Papadopoulos v. Target Corp., 457 Mass. 368 (2010). That case eliminated the distinction between natural and unnatural accumulations of ice and ruled that our courts should now “apply to hazards arising from snow and ice the same obligation [of reasonable care] that a property owner owes to lawful visitors as to all other hazards.” Id. at 383.
The plaintiff argues that this case should be remanded and retried in light of Papadopoulos. The defendant takes the position that because judgment had entered, Papadopoulos does not apply. “[T]he normal rule of retroactivity to which the Supreme Judicial Court adverted [in Papadopoulos ] ‘app[lies a change in the law] to all claims ... as to which an appeal is pending.’ “ Lindor v. McDonald's Restaurants of MA., Inc., 80 Mass.App.Ct. 909, 910 (2011), quoting from Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 23 (1998). As stated in Galvin v.. Welsh Mfg., 382 Mass. 340, 343–344 (1981), and quoted in Lindor, supra, “It is settled that appellate courts will properly note developments in the applicable law that have occurred after entry of a judgment below.” Applying this rule of retroactivity, we hold that the standard articulated in Papadopoulos applies to this case.
Deciding as we do, we need not consider whether the judge erred in directing a verdict for the defendant under the previous standard for recovery. We note that normally it is preferable to allow a case to be decided by the jury so that there would be no need for a retrial should the legal issue be resolved in favor of the plaintiff on appeal. See Feltch v. General Rental Co., 383 Mass. 603, 611 (1981).
The judgment is vacated and the case is remanded for trial.
So ordered.