Bernier, et al. v. Smitty’s Sports Pub, Inc. (Lawyers Weekly No. 11-146-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1967 Appeals Court NANCY BERNIER, administratrix,[1] & another[2] vs. SMITTY’S SPORTS PUB, INC. No. 14-P-1967. Bristol. December 18, 2015. – October 11, 2016. Present: Cohen, Trainor, & Katzmann, JJ. Negligence, Trespasser, Foreseeability of harm. Civil action commenced in the Superior Court Department on June 28, 2010. The case was tried before Richard T. Moses, J. John P. Knight for the defendant. Christopher Amrhein for the plaintiffs. TRAINOR, J. The defendant, Smitty’s Sports Pub, Inc. (Smitty’s), appeals from a judgment in favor of the plaintiffs that entered following a jury trial of a wrongful death lawsuit of Ronald J. Leger, the plaintiffs’ decedent (decedent), filed by Nancy M. Bernier, administratrix of the estate of Ronald J. Leger, and Cecile M. Leger (plaintiffs). We are asked to determine whether the decedent was a trespasser and, therefore, what duty of care was owed to him by the defendant. The defendant argues that the trial court erred in denying its motion for directed verdict and motion for judgment notwithstanding the verdict because the decedent was a trespasser as a matter of law. Alternatively, the defendant argues that the determination whether the decedent was a trespasser should have been a question of fact that was presented to the jury. We affirm. Background. We recite the facts the jury could have found, reserving some facts for later discussion. On March 11, 2010, the decedent, age seventy-four, went into Smitty’s rear entrance. Upon entering Smitty’s, the decedent mistakenly opened a door marked “Employees Only” believing it was the men’s bathroom. Three doors, marked “Gentlemen,” “Ladies,” and “Employees Only,” were all similarly marked, the same color, and close to each other. The “Employees Only” door opened directly onto a concrete staircase which had a drop of over two and one- half feet onto the middle of the staircase. The “Employees Only” door opened inward onto the unlit stairwell. The “Gentlemen’s” and “Ladies’” doors opened outward. The “Employees Only” door was usually locked during business hours but was not locked at the time of the incident. The decedent fell down the steps and died of his injuries two weeks later. The jury found that the defendant was negligent in the maintenance of the property and that this negligence was causally related to the injuries suffered […]
Bernier v. Fredette, et al. (Lawyers Weekly No. 11-044-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1684 Appeals Court BRYANT BERNIER[1] & another vs. NORMAN FREDETTE & others.[2] No. 12‑P‑1684. Suffolk. November 6, 2013. ‑ May 6, 2014. Present: Kantrowitz, Graham, & Meade, JJ. Real Property, Boundary, Deed. Deed, Construction. Surveyor. Evidence, Expert opinion. Witness, Expert. Civil action commenced in the Land Court Department on August 4, 2008. The case was heard by Gordon H. Piper, J. Mark Bobrowski for David Bechtold. Richard E. Burke, Jr., for Norman Fredette & another. Marc R. Deshaies for the plaintiffs. GRAHAM, J. This boundary dispute originates from deeds granted beginning in 1870 and requires us to locate the common boundary between the plaintiffs’ and defendants’ Acushnet properties. The plaintiffs commenced this action seeking to remove a cloud on their title pursuant to G. L. c. 240, §§ 6-10, seeking a declaration of the correct location of their common boundary, and seeking damages for trespass and nuisance. The defendants filed counterclaims for trespass and nuisance. Following a three-day trial and a view of the relevant properties and monuments, the Land Court judge adopted the boundary proffered by the plaintiffs and awarded them nominal damages for trespass and nuisance. The judge expressly limited the judgment to the parties named and served in this proceeding. On appeal, the parties do not pursue any issue regarding their trespass and nuisance claims and only the boundary dispute is before us on the defendants’ appeal. For the reasons that follow, we affirm the decision of the Land Court judge. Background. All of the property at issue is located off Hathaway Road in Acushnet and originally was owned by Samuel Wing, whose heirs subdivided the property and conveyed separate parcels over time. The parcels are referred to by the parties pursuant to lot numbers designated on Acushnet Assessors’ Map 14 (map 14). The current map 14 is not in the record, but the multiple plans submitted by the parties have adhered to the lot numbers set forth on map 14. The judge attached to his decision the Bernier trial plan of lot 13 and lot 16 submitted by the plaintiffs following trial. To orient the reader and for ease of reference, we attach the relevant part of the trial plan as an appendix. Samuel Wing’s substantial holdings included, at a minimum, what is now […]