Posts tagged "Bowers"

Bowers v. P. Wile’s Inc. (Lawyers Weekly No. 10-107-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   SJC-11923   LINDA S. BOWERS  vs.  P. WILE’S, INC.[1]       Middlesex.     January 7, 2016. – July 28, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2]     Negligence, Retailer.  Practice, Civil, Summary judgment.       Civil action commenced in the Superior Court Department on February 24, 2012.   The case was heard by Paul D. Wilson, J. on a motion for summary judgment, and a motion to vacate judgment was also heard by him.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Joseph T. Black for the defendant. David McCormack for the plaintiff.   The following submitted briefs for amici curiae: William P. Mekrut for Massachusetts Defense Lawyers’ Association. Carol A. Kelly for Property Casualty Insurers Association of America. Annette Gonthier Kiely, Michael C. Najjar, Tomas R. Murphy, & Elizabeth N. Mulvey for Massachusetts Academy of Trial Attorneys.     DUFFLY, J.  In this case we are called upon to determine whether the “mode of operation” approach to premises liability,  see Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 683 (2015) (Sarkisian), and Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788 (2007) (Sheehan), is applicable with respect to the operation of a garden store.  The plaintiff, Linda Bowers, suffered a displaced fracture of her right hip after she slipped and fell on a walkway leading into a Cape Cod garden store owned by the defendant, P. Wile’s, Inc., doing business as Agway of Cape Cod (Agway).  Agway maintains what the parties refer to as a “gravel area” near the concrete walkway leading into the store, where landscaping items are displayed for sale.  Customers may enter the gravel area, which consists of small stones less than one inch in diameter,[3] and shop for products displayed there without assistance from any Agway employee. After she fell on Agway’s premises, Bowers filed a complaint in the Superior Court asserting that she tripped on a stone that had migrated from the gravel area to the walkway, and that Agway knew that the movement of the stones from the gravel area created a risk of tripping on the walkway, but failed to take reasonable steps to mitigate that risk.  Agway moved for summary judgment, arguing that, under the traditional theory of premises liability, where […]

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Posted by Massachusetts Legal Resources - July 28, 2016 at 5:37 pm

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Bowers v. P. Wile’s, Inc. (Lawyers Weekly No. 11-049-15)

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-313                                        Appeals Court   LINDA S. BOWERS  vs.  P. WILE’S, INC.[1] No. 14-P-313. Middlesex.     December 10, 2014. – May 15, 2015.   Present:  Kantrowitz, Green, & Sullivan, JJ.     Negligence, Retailer.  Notice.  Practice, Civil, Summary judgment.       Civil action commenced in the Superior Court Department on February 24, 2012.   The case was heard by Paul D. Wilson, J., on a motion for summary judgment, and a motion to vacate judgment was heard by him.     David McCormack for the plaintiff. Joseph T. Black for the defendant.     GREEN, J.  In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788 (2007) (Sheehan), the Supreme Judicial Court adopted the so-called “mode of operation” approach to premises liability.  Under that approach, a plaintiff injured as the result of a dangerous condition on an owner’s property is relieved of the need to prove that the owner had actual or constructive notice of the condition if he instead establishes that the dangerous condition was “related to the owner’s self-service mode of operation.”  Id. at 786.  In the present case, a judge of the Superior Court allowed the defendant’s motion for summary judgment, based on his view that the mode of operation approach applies only where the dangerous condition results from breakage or spillage of items offered for sale.[2]  We discern no such limitation in the mode of operation approach described by the Supreme Judicial Court in Sheehan, supra, or in the rationale supporting it.  We also conclude that the summary judgment record does not foreclose the prospect that the plaintiff could succeed, at trial, in proving that the defendant failed to use reasonable measures to prevent injuries that could result from the foreseeable dangerous condition.  See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991).  We accordingly reverse the judgment and the order denying the plaintiff’s motion to vacate the judgment, and remand the matter to the Superior Court for further proceedings. Background.  We review the entry of summary judgment de novo, construing all facts in favor of the nonmoving party.  Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).  We summarize the undisputed facts, construed in that manner, as they appear in the summary judgment record. On the afternoon of December 28, 2011, the plaintiff rode with her father to the defendant’s store on […]

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Posted by Massachusetts Legal Resources - May 17, 2015 at 12:13 am

Categories: News   Tags: , , , , ,