TABLE OF CONTENTS


I. STATEMENT OF THE ISSUES

II. STATEMENT OF THE CASE

III. STATEMENT OF FACTS

IV. ARGUMENT

A. THE TRIAL COURT ERRED IN GRANTING A JUDGMENT NOTWITHSTANDING THE VERDICT FOR THE DEFENDANT BECAUSE THE EVIDENCE PRESENTED SUPPORTED THE FINDING IN FAVOR OF MS. FAHEY.

1. The Standard of Review
2. Defendant’s motion was not specific enough to allow plaintiff an opportunity to cure any alleged deficiencies.
3. There was sufficient evidence from which a reasonable jury could naturally draw the inference that the fall was caused by the defendant’s negligence.
4. The so-called “melting ice cream” cases are easily distinguishable from the facts of this case.
5. In ruling on the JNOV, there was no finding made by the lower court that an error was made by the jury which would result in a manifest miscarriage of justice.

B. BURDEN OF GOING FORWARD ISSUES

1. Once a prima facie case has been made by a plaintiff, the burden then devolves upon the defendant to come forward with evidence.
2. Under the mode of operation rule notice of foreign substance need not be proved.

CONCLUSION

TABLE OF AUTHORITIES

I. STATEMENT OF THE ISSUES

I. Whether the lower court erred in granting the defendant’s motion for judgment notwithstanding the verdict in this negligence case where defendant failed to properly specify the grounds underlying its motion for directed verdict and where plaintiff was not given an opportunity to cure any alleged deficiencies in the proof of her case.

II. Whether the lower court erred in granting the defendant’s motion for judgment notwithstanding the verdict in this negligence case, where the jury found, on overwhelming evidence, that the defendant failed to act reasonably with regard to a dangerous condition on its premises.

III. Whether the lower court erred in granting the defendant’s motion for judgment notwithstanding the verdict in this negligence case, where defendant failed to meet its burden of proving it used reasonable care once plaintiff proved the existence of a hazardous condition.

II. STATEMENT OF THE CASE

This action was filed by the plaintiff on October 21, 1993 in Suffolk Superior Court (Appendix, p. 2). In her original complaint, Plaintiff/Appellant Dorothy Fahey sought recovery against Defendant First National Supermarket d/b/a Edward’s Food Warehouse, for severe personal injuries sustained by her in a February 9, 1993 accident after she tripped on an orange juice jug which was on the floor (Appendix, pp. 4-6).

Defendant First National Supermarkets filed an answer on February 1, 1994, denying each of the material allegations of the complaint (Appendix, pp. 7-10).

On March 20, 1995, the action was set for trial before a Suffolk County jury (Appendix, p. 2). At the close of the plaintiff’s case, Defendant moved for a directed verdict arguing generally that the evidence did not warrant a verdict that the Defendant First National had knowledge of or had sufficient time to discover the defect alleged by plaintiff/appellant (Appendix, p. 17). The motion was denied and during argument of the motion, the trial judge stated specifically that “a jury could reasonably infer that the product came out of the freezer chest or counter or whatever you want to call it and that it would come out cold and the fact that it was there long enough to warm up would seemingly get the Plaintiff to the point of having some evidence from which a verdict and so forth could be based. . . .” (Transcript, p. 78, lns. 7-14).

The motion for directed verdict was renewed at the close of all the evidence and again denied (Transcript, p. 108, lns. 16-21).

Following the trial, the jury returned a verdict in this negligence case on special questions in favor of plaintiff Dorothy Fahey (Appendix, p. 18). The jury assessed damages in the amount of $160,000.00 (Appendix, p. 19). Judgment entered in favor of plaintiff on March 20, 1995 and the parties were notified on March 27, 1995 (Appendix, p. 20).

On March 27, 1995 Defendant First National Supermarkets, d/b/a Edwards Food Warehouse filed a Motion for Judgment Notwithstanding the Verdict, claiming that there was no evidence introduced at trial that the defendant, First National Supermarkets was negligent (Appendix, p. 21). The motion was granted by the lower court (Barrett, J.) on June 6, 1995 (Appendix, p. 35). In its memorandum and order, the lower court determined that plaintiff did not satisfy the burden because she left a necessary part of her case to pure speculation and in viewing the evidence most favorably to the plaintiff, it was not possible to draw enough reasonable inferences to make out the elements of the case (Appendix, pp. 22-35).

On June 7, 1995, a Judgment of Dismissal was entered in favor of the defendant (Appendix, p. 36).
Fahey filed a timely Notice of Appeal on June 9, 1995 (Appendix 37).

III. STATEMENT OF FACTS

Dorothy Fahey is 74 years old and a life long resident of the Boston area (Transcript, p. 11, lns. 1-14). She retired from the Alcoholic Beverage Control Commission in 1974 after working there for over 30 years (Transcript, p. 12, lns. 10-17). On February 9, 1993, at approximately 9:15 a.m., Ms. Fahey went to the Edward’s Food Warehouse to shop for groceries (Transcript, p. 15, lns. 10-17). Edward’s Food Warehouse is a typical large self-serve grocery store, with goods and products stored on shelves for access by customers (Transcript, p. 19, lns. 11-20). While in the store, she did some shopping along an aisle containing refrigerated dairy and juice products on one side and bread products on the other (Id., p. 19, lns. 11-23). Near the juice rack, in the middle of the aisle, there was a tray containing bakery products, which turned out to be moveable (Id.). Ms.. Fahey proceeded down the aisle and as she approached the dairy case she tripped over a one gallon jug or bottle of orange juice which was on the floor next to the moveable tray (Transcript, pp. 20-21, lns. 12-23, 1-21; p. 23, lns. 3-6; p. 24, lns. 6-12; p. 25, lns. 18-21). She had not seen the orange juice container before she fell (Transcript, p. 20, lns. 15-22). The orange juice container caused her to lose her balance and as she began to fall she reached out to grab the tray, but because it was moveable, it rolled away and Fahey fell to the floor landing on her entire right side (Transcript, p. 21, lns. 3-11). Ms. Fahey suffered a hip and shoulder fracture in the fall (Id.).

While Ms. Fahey was on the floor, the inner part of her left lower leg came into contact with the orange juice container (Transcript, 24, lns. 17-19). Her pant leg had pulled up and the container touched the skin on her inner lower left leg. (Transcript, p. 25, lns. 1-5; p. 61, lns. 1-2). Ms. Fahey testified that the orange juice that she tripped over was warm to the touch (Id.). She also testified that normally the juice in the refrigerated cases at Edward’s are cool (Transcript p. 25, lns. 6-10). The accident occurred three to four feet away from the refrigerated dairy case upon which the orange juice containers were stored (Transcript, p. 23, lns. 10-15).

Other evidence produced at trial include the following:

1. Defendant admitted it was in control of the store at the time of Ms. Fahey’s accident (Transcript, p. 69, lns. 1-6);

2. Defendant admitted it was responsible for the maintenance, care, management and inspection of the market at the time of Ms. Fahey’s accident (Transcript, p. 69, lns. 17-22); and

3. Defendant admitted that it had not inspected the area where Ms. Fahey fell since 7:00 a.m., more than two hours prior to the accident (Transcript, p. 70, lns. 1-11).

Edward Nally was a clerk at Edward’s Food Warehouse on the day of Ms. Fahey’s accident (Transcript, p. 80, lns. 3-7). At the time of the accident, Nally was working in the aisle where Ms. Fahey fell (Transcript, p. 80, lns. 19-23). Nally also testified that as a clerk at the store he was required to look for items on the floor and remove them if he was working in the area (Transcript, p. 85, lns. 6-10). He also testified that prior to Ms. Fahey’s accident, he had been going “back and forth” in the aisle for some time before the accident (Id.)

There was no dispute relative to the presence of the orange juice container. The only dispute concerned the length of time it had been present prior to the accident. Because the juice jug was warm to the touch, and because as with all dairy and juice products at Edward’s, it should have been cold, the jury inferred that the juice jug had been present long enough for defendant’s employees to have become aware of the condition in the normal performance of their duties. That combined with the location of the container and the fact that the aisle had not been inspected in two hours, were circumstances that the jury concluded amounted to negligence on the part of defendant.

 IV. ARGUMENT

A. THE TRIAL COURT ERRED IN GRANTING A JUDGMENT NOTWITHSTANDING THE VERDICT FOR THE DEFENDANT BECAUSE THE EVIDENCE PRESENTED SUPPORTED THE FINDING IN FAVOR OF MS. FAHEY.

1. The Standard of Review

In considering a motion for judgment notwithstanding the verdict, the court must not weigh either witness credibility or the evidence itself; it must merely ask whether the jury could reasonably have returned a verdict in favor of the winning party. Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84, 89 (1987). The court must consider whether from the evidence, taken in the light most favorable to the party opposing the motion, it was impossible to draw enough reasonable inferences to make out the elements of the case. Id. Further, the court must make inquiry as to “whether plain error has been committed which if not noticed, would result in a manifest miscarriage of justice.” Little v. Bankers Life and Gas Co., 426 F. 2d 509, 511 (5th Cir. 1970). A jury's verdict may be vitiated only if manifest injustice will otherwise result and the court may not substitute its own judgment for that of the jury merely because it may have reached a different conclusion. Southeastern Pennsylvania Transp. Authority v Transit Casualty Co., 412 F. Supp. 839 (DC Pa. 1976). To grant a motion for judgment n.o.v., the court must find as matter of law that plaintiff failed to adduce sufficient facts to justify the verdict and such motion may be granted only when, without weighing credibility of evidence, there can be but one reasonable conclusion as to proper judgment. Id. In other words, the court must make inquiry to determine whether the verdict “appears to the court inconsistent with substantial justice.” Mass. R. Civ. P. 61, 365 Mass 829 (1974).
For the reasons set forth below, the granting of the judgment n.o.v. in this case was improper. First, defendant’s motion for directed verdict was not specific enough under Mass. R. Civ. P. 50 (a) to give plaintiff an opportunity to cure any alleged deficiencies. Next, the evidence as presented clearly warranted a verdict in favor of plaintiff/appellant Dorothy Fahey. The conclusions of the trier of fact in each case, including this one, are entitled to great weight and should not be disturbed in the absence of manifest error. Gallagher v. Taylor, 26 Mass. App. Ct. 876, 880-881 (1989). Here the jury found, after considering all of the circumstances, that the defendant was negligent. There was no basis for disturbing that finding in this case. Finally, defendant failed to satisfy its burden of going forward with evidence after plaintiff/appellant proved the existence of a defective condition on its premises.

2. Defendant’s motion was not specific enough to allow plaintiff an opportunity to cure any alleged deficiencies.

Rule 50 (b) of the Massachusetts Rules of Civil Procedure allows for motions for judgment notwithstanding the verdict only when a motion for a directed verdict has been made at the close of evidence. A motion for a directed verdict according to Mass. R. Civ. P. 50 (a), 365 Mass. 814 (1974), must "state the specific grounds therefor." As a motion for judgment notwithstanding the verdict is technically a revised motion for a directed verdict, no grounds for the motion for judgment notwithstanding the verdict may be raised which were not asserted in the directed verdict motion. Bonofiglio v Commercial Union Ins. Co., 411 Mass 31, 34 (1991). See House of Koscot Dev. Corp. v. American Line Cosmetics, Inc., 468 F.2d 64, 67-68 (5th Cir. 1972); 5A Moore's Federal Practice par. 50.08 (2d ed. 1989). The requirement that a litigant state specific grounds in support of a motion for directed verdict is an important one. It allows the judge knowingly to rule on the question before him, and it allows the opposing party an opportunity to rectify any deficiencies in its case -- or, more precisely, an opportunity to seek leave from the court to do so. Bonofiglio, 411 Mass. at 34-35. See, e.g., Benson v. Allphin, 786 F.2d 268, 273 (7th Cir. 1986); McKinnon v. Berwyn, 750 F.2d 1383, 1388-1389 (7th Cir. 1984).
In the motion for directed verdict submitted to the court, there was no mention of any specific deficiencies in plaintiff’s case. The motion (which appears in the Appendix at page 17) is a one page pleading which states general conclusary allegations of basic negligence principles. There is no mention of an alleged deficiency relative to the type of material the orange juice container was made of; there was no mention of any dispute as to whether orange juice is stored cold at Edward’s; and there was no mention of any dispute concerning the location of any Edward’s employees in the aisle where the accident occurred. In fact, plaintiff relied upon the statements from the court that she had introduced sufficient evidence to get to the jury. Had plaintiff been made aware by a proper motion and had she been put on notice of any alleged deficiencies, she would have had an opportunity, prior to the close of all the evidence, to rectify any alleged problems of proof.
Because defendant First National did not state the specific grounds for its directed verdict motion, there was never a proper motion for a directed verdict. Therefore, under the rule, there was never a proper motion for judgment notwithstanding the verdict. Bonofiglio, 411 Mass. at 35. Accordingly, the judgment in favor of defendant First National should not have issued, and judgment should properly be re-entered in favor of plaintiff Dorothy Fahey.


3. There was sufficient evidence from which a reasonable jury could naturally draw the inference that the fall was caused by the defendant’s negligence.

An owner or occupier of land owes a duty to all lawful visitors, such as Ms. Fahey, to exercise reasonable care in all the circumstances. Mounsey v. Ellard, 363 Mass. 693 (1973). "The ‘reasonable care in all the circumstances’ standard allows the jury to determine what burdens of care are reasonable in light of the relative expense and difficulty they impose on the owner or occupier as weighed against the probability and seriousness of the foreseeable harm to others." Id. at 709. The obligation of a storeowner is to use due care to keep the premises which are provided for use of its patrons in a reasonably safe condition, or at least to warn them of any dangers that might arise from such use, which are not likely to be known to the patrons, and of which the defendant knows or ought to know. Oliveri v. Massachusetts Bay Transportation Authority, 363 Mass. 165, 166-167 (1973). These duties contemplate inspections for and discovery of hazardous conditions, followed by the taking of such protective measures as are necessary to guard against dangers to lawful visitors known or that should be known by the storeowner. The appropriate protective measure in most cases is elimination of the hazard, as by cleaning up merchandise or other debris that have found their way onto the floor. Proof of the defendant’s negligence may consist of showing that the defendant caused the offending substance to be at the place of injury, or if someone else caused it to be there, that the defendant knew or should have known of its presence and failed within a reasonable time to remove it. Wexler v. Stanelsky Memorial Chapel of Brookline, Inc., 2 Mass. App. Ct. 750, 750-753 (1975).
Examining the evidence in the light most favorable to the plaintiff, it is eminently clear that sufficient evidence was presented by Ms. Fahey from which a reasonable jury could find that defendant was negligent in conducting its business operation. As noted earlier, in a negligence case, the critical question is whether the defendant has failed to act as a reasonably prudent person could have acted in all the circumstances, “including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk.” Mounsey v. Ellard, 363 Mass. 693, 708 (1973). Such circumstances include the nature of the establishment and the nature of the clientele known to visit such premises. Upham v. Chateau DeVille Dinner Theatre, 380 Mass. 350, 355 (1980). “The evaluation of such circumstantial evidence is frequently, and unavoidably, a difficult and hairsplitting task.” Oliveri v. MBTA, 363 Mass. 165, 168 (1973). This circumstantial inquiry is ordinarily a factual determination reserved to the fact finder -- in this case, a jury. That factual finding is given great weight and must not be disturbed in the absence of manifest error. Gallagher v. Taylor, 26 Mass. App. Ct. 876, 880-881 (1989). The sea of facts and circumstances upon which liability can be predicated is endless. For this reason, it is unwise to turn these factual determinations into rules of law. Instead, it is best to leave the determination of reasonableness to the jury. Every case must stand or fall on the factual circumstances surrounding the accident as determined by the fact finder.
In this case, under negligence principles, liability can be predicated upon any or all of the following facts or circumstances:

a. The warm temperature of the orange juice and container which leads to the inference that some appreciable time must have elapsed for the juice to have gotten to that condition and should have been detected and removed by defendant First National;

b. The moveable cart which Ms. Fahey reached out to grab did not protect Ms. Fahey from falling, and gave her a false sense of security when she attempted to break her fall;

c. Defendant First National failed to adequately inspect the area where Ms. Fahey fell, and the employee who was working back and forth in that aisle failed to discover and remedy the defective condition; and/or

d. Given the nature of defendant’s business, greater precautions should have been taken to recognize and eliminate dangerous conditions on the premises.

The length of time allowed to a defendant to identify a defective condition is governed by the circumstances of each case and to a large extent depends on "the opportunity for discovery open to the defendant's employees by reason of their number, their physical proximity to the condition in question, and, in general, the likelihood that they would become aware of the condition in the normal performance of their duties. Oliveri v. MBTA, 363 Mass. 165, 167 (1973). The determination of these circumstances is a matter of fact-finding for a jury, and should not be determined as a matter of law. Inferences drawn from circumstantial evidence play a large role in proving negligence. For instance, the appearance of the offending object may permit an inference that it remained on the premises for an unreasonable period of time. Anjou v. Boston Elevated Rail Co., 208 Mass. 273, 274 (1911). The cases where the plaintiff succeeds when attempting to establish the time element by circumstantial evidence fall into three categories:

a. Cases where the peculiar nature of the foreign substance as described supported an inference that the defendant’s employees either created or knew or should have known of the condition. (e.g., Young v. Food Fair, Inc., 337 Mass. 323; Rossley v. S.S. Kresge Co., 339 Mass 654);

b. Cases where there was particularly favorable evidence for the plaintiff as to the location of duty stations of the defendant’s employees. (e.g., Foley v. F.W. Woolworth Co., 293 Mass. 232, 234; Gallagher v Stop & Shop, Inc., 332 Mass. 560); and

c. Some cases where organic matter was involved Anjou v. Boston Elevated Railway, 208 Mass. 273 (1911).

In these cases where the plaintiff has succeeded, the circumstantial evidence, and the description of the foreign substance were such that the application by the fact finder of principles within common knowledge was sufficient to establish a time element. Oliveri v. Mass. Bay Transportation Authority, 363 Mass. 165, 170 (1973).
The evidence most favorable to plaintiff Fahey in this case showed that the orange juice container that caused Ms. Fahey to fall was warm to the touch immediately after the accident. It is common knowledge, and the testimony of Ms. Fahey supported the contention, that the orange juice in the dairy section of a supermarket is a product that must be continuously refrigerated when stored on a shelf in a supermarket and ordinarily is cold to the touch. This peculiar condition (i.e. the warm juice container), combined with the evidence that the aisle had not been inspected by defendant in over two hours, and that one of defendant’s employees had been going back and forth in the aisle prior to Ms. Fahey’s accident, permitted the jury in this case to infer that the orange juice container had been on the floor for quite some time and had been there long enough for the storekeeper to have a reasonable opportunity to have seen and removed it. Indeed, the jury could have determined that Nally, in his traversing the aisle, should have observed what he was trained to observe. In addition, the moveable tray was a circumstance tending towards the imposition of liability. To Ms. Fahey, this display rack looked like the “Rock of Gibraltar” that she could grab onto to break her fall. When this seemingly stable cart rolled away, this minor calamity was turned into a major catastrophe.
In Negri v. Stop & Shop, Inc., 65 N.Y. 2d 625, 491 N.Y.S. 2d 151, 480 N.E. 2d 740 (1985), a customer filed an action against a store to recover for injuries sustained in a slip and fall in the defendant’s premises. In the area where the plaintiff fell, there were broken jars of baby food, which were dirty and messy. Witnesses within the vicinity had not heard any jars break 15-20 minutes prior to the accident. This evidence was sufficient for the jury to draw the necessary inference that the condition had existed a sufficient length of time to permit the store’s employees to discover and remedy the debris.
Defendant First National argues, and the lower court determined, that the warm orange juice was insufficient on its own, to impose liability. Uchman v. Polish Natl. Home, Inc., 330 Mass. 563. While that may be a correct statement of the law, it is important to note that the warm orange juice is not the only condition or circumstance relied upon by plaintiff to impose liability in this case. The circumstance that makes the difference is that the organic substance -- in this case, warm orange juice -- had been in a place where defendant could have seen it, not just that it was warm. Here the orange juice container was in a main aisle of Edward’s Food Warehouse; it was in an aisle that was supposed to have been routinely inspected by Edward’s employees and had not been inspected in over two hours; an Edward’s employee was, in fact, working in that aisle at the time of the accident; and the orange juice container was in a place where the store employees should have seen it. It has been held that the failure to inspect within a particular time period of time alone prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it. Bridgman v. Safeway Stores, Inc., 348 P.2d 696, 698 (Cal. 1960). In this case, the fact that defendant had not inspected the aisle where Ms. Fahey fell in over two hours alone could support the verdict in her favor.
The length of time a dangerous condition must exist before notice of the condition is chargeable varies according to the circumstances. A stop watch reading alone cannot resolve the issue. One must take into account the nature of the condition complained of, probable consequences, opportunities available for discovery, efforts required and foresight that persons of reasonable prudence could exercise under similar circumstances. All of these factors must be considered. Safeway Stores v. Lucas, 410 F.2d 603. In this case, the jury having considered all of the circumstances, found that defendant First National acted unreasonably. Such a finding should not have been disturbed by the lower court.
The jury also took into consideration the nature of the defendant’s business -- another circumstance to be considered by the fact finder. The care required is commensurate with the particular risk involved, and the risks vary with many factors, including whether the store is a self-service type where customers are allowed to inspect and handle things for sale. Bridgman, 348 P.2d at 698. When a storekeeper chooses to conduct a self-service operation, he must do what is reasonably necessary to protect his customers from the risk of injury that mode of operation is likely to generate. Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513, 514 (1966). The storekeeper must take precautions for the likelihood that goods in a self-service operation will fall or be dropped on the floor.

This rule does not create a higher standard of care for self-service operations. It is axiomatic that a property owner or occupier is required to use reasonable care toward his business invitees. What is reasonable depends upon the nature of the circumstances surrounding the business conducted. . . . One of the circumstances to be considered is the method of operation. The realities of a self-service operation cannot be ignored, and what is reasonable for the Ma and Pa grocery store where Pa retrieves each item from behind the counter for the customer may not be reasonable where the customers have access to every item for sale and are subject to the whims of all other customers in handling that merchandise.

Ciminski v. Finn Corporation, Inc., 13 Wash. App. 815, 537 P.2d 850, 853 (1975). In this case, First National is a huge store with many employees and many opportunities to identify and remedy defects. That is a circumstance that the jury can and did consider in determining what was reasonable behavior on the part of defendant First National.

4. The so-called “melting ice cream” cases are easily distinguishable from the facts of this case.

Defendant First National argues that this case is closely analagous to Beach v. S.S. Kresge Co., 302 Mass. 544 (1939), a so-called "melting ice cream" case. In Beach, the plaintiff claimed that melting ice cream caused her fall and proferred no other evidence of defendant’s negligence. The court in Beach found that melting ice cream alone was insufficient to warrant a finding in favor of plaintiff. Unlike the plaintiff in Beach, Ms. Fahey has profferred ample evidence of negligence. As clearly set out in the record, the temperature of the orange juice container in this case was not the only evidence of negligence. Indeed, there were a number of facts and circumstances which support the finding of negligence here. They include the temperature of the juice container, the location of the juice container, the location of the Edward’s employee in the aisle, the lack of an inspection of the aisle, and the self-service nature of defendant’s business.


5. In ruling on the JNOV, there was no finding made by the lower court that an error was made by the jury which would result in a manifest miscarriage of justice.

In issuing its memorandum and order, the lower court did not address the issue of whether any manifest miscarriage of justice resulted from the verdict in favor of plaintiff Dorothy Fahey. To the contrary, when the court initially ruled on defendant’s motion for a directed verdict, the court explicitly found that a verdict in favor of Ms. Fahey would be reasonable and supportable. This finding was made at the close of plaintiff’s case, at a time when the evidence was fresh in the mind of the trial judge. The allowance of the judgment n.o.v. close to three months after the trial reflected a dramatic change of view for the trial judge. There is no indication given in the lower court’s decision as to what events transpired to cause this great leap, and there is no indication of what, if any, manifest miscarriage of justice would result from the verdict in her favor. Failing this essential finding, the lower court’s order granting the judgment n.o.v. must be reversed.


B. BURDEN OF GOING FORWARD ISSUES

1. Once a prima facie case has been made by a plaintiff, the burden then devolves upon the defendant to come forward with evidence.

Once a party with the burden of proof has established a prima facie case, the burden of going forward devolves upon the opposing party, upon whom it is then incumbent to produce evidence of equal or greater weight, to rebut and control such prima facie case. Smith v. Hill, 232 Mass. 188, 190, aff'd, 260 U.S. 592, 67 L.Ed. 419, 43 S.Ct. 219 (1919); Central Bridge Corp. v. Butler, 68 Mass. 130, 132 (1854).

The burden of proof and the weight of the evidence are two very different things. The former remains on the party affirming a fact in support of his case, and does not change in any aspect of the cause; the latter shifts from side to side in the progress of a trial, according to the nature and strength of the proofs offered in support or denial of the main fact to be established.

Central Bridge Corp. v. Butler, 68 Mass. at 132. See generally P. Liacos, Handbook of Massachusetts Evidence 37-48 (5th ed. 1981).
Here, plaintiff presented evidence which clearly satisfied her burden of proof regarding liability and her injuries. By doing so, plaintiff met her burden of proof and satisfied her burden of going forward with the evidence. The burden of going forward then shifted to defendant to rebut and control such evidence. As the court in Bozza v. Vornado, Inc., 42 N.J. 355, 200 A. 2d 777 (1964) noted, once the plaintiff proves the existence of a dangerous transitory condition and a fall resulted therefrom, an inference of negligence is raised. The burden of going forward with the evidence shifts to the store owner to show a lack of negligence. While the burden is on the plaintiff to show that substance on which the customer fell remained on the floor a sufficient period of time that it should have been discovered and removed, the burden is subject to the requirement that defendant first show in preliminary way that the foreign substance was not discovered in spite of reasonable, careful and frequent inspections. Lang v. Winn Dixie Louisiana, Inc., (1969) LA App. 1st Cir.) 230 So. 2d 383.
To exculpate itself from liability, a proprietor must show that its employees knew of no hazard on the floor and that reasonable steps to discover and correct any such hazard had been taken, where there was no evidence to show that inspection had actually been made of aisle nor that any employee had been in the area of an accident that morning. Bonnette v. K. Mart, 502 So. 2d 202. In that regard, a cursory look down the aisle two hours before the accident occurred does not constitute an adequate inspection that would have constitute proof of reasonable steps on behalf of the storekeeper. Nettles v. Winn Dixie, 496 So. 2d 1296.
Ms. Fahey was able to produce sufficient evidence to enable a reasonable person to infer negligence on the part of the defendant. The burden then shifted to the defendant, First National Supermarkets, d/b/a Edwards Food Warehouse to exculpate itself. Having failed to convince the jury that it acted reasonably under the circumstances, a verdict against defendant First National was justified. The defendant did not fulfill its burden of showing that it took reasonable protective measures to protect its customers from foreseeable harms associated with self-service supermarkets.

2. Under the mode of operation rule notice of foreign substance need not be proved.

Some courts have gone as far as to say that when a plaintiff shows that the circumstances are such as to create the reasonable probability that a dangerous condition will occur, he need not also prove actual or constructive notice of the specific condition. Bozza v. Vornado, Inc., 42 N.J. 355, 200 A. 2d 777, 780 (1964). Some courts, although not dispensing with the requirement that the plaintiff show that the owner or proprietor had notice, have held that where a recurring condition or conduct such as a recurring accumulation of liquid matter on the floor in front of a supermarket meat counter or a store owner’s use of a self-serve produce display, make it reasonably probable that a dangerous condition will occur, either the store owner or business proprietor is deemed to have constructive notice of the specific condition allegedly causing the plaintiff’s fall. In this age of supermarkets with self-service counters, the increase in accidents like increased thefts, have come to be looked upon as a hazard of doing a self-service business. Steinhorst v. H.C. Prange Co., 180 N.W.2d 525, 527 (1970). Notice is merely one factor for determining whether the proprietor has breached his duty of due care to an invitee. Bozza v. Vornado, Inc., 42 N.J. 355, 200 A.2d 777 (1964).
The modern trend is that courts have dispensed with the notice requirement entirely in certain types of slip and fall cases notably, those involving self-service activities such as the typical supermarket. Ciminski v. Finn Corp., 13 Wash. App. 815,537 P.2d 850. The court in Ciminski also stated that the notice requirement has been held to be inapplicable if the circumstances are such as to create a reasonable probability that a specific hazardous condition would occur, the defendant is held to a duty to foresee the hazard and take adequate preventive measures. In these circumstances, a proprietor of a self service store is deemed to have actual notice of dropped or spilled merchandise. Cobb v Skaggs, 661 P.2d 73. The rationale underlying such a rule was succinctly stated in Kavlich v. Kramer, 315 So.2d 282, 284-285 (1975):

Self-service grocery stores require customers to look for and to find the objects which they wish to purchase. These objects are placed upon shelves of various sizes and heights. Discernment of a particular object for purchase requires fairly strict surveillance of the shelving in order to discover the item desired. Numerous items displayed upon shelving along the aisles or walkways in self-service stores entice the customers to focus their eyes upon the display rather than on the surface upon which they walk. . . . It is not uncommon that owners and managers of the stores, their employees, or customers drop objects into these aisles which pose a danger to one who inadvertently steps upon the object.

The court in Rhodes v. El Rancho Market, 4 Ariz. App. 183, 418 P.2d 613, took judicial notice of the fact that in a self service market operation, the customer is expected to handle and examine produce displayed and handled in such a fashion, it may reasonably be concluded that the risk of customers slipping and falling on objects dropped on the floor by employees or other customers is a risk within the reasonable foresight of a storekeeper. The proprietor of a store is not expected to carry out an unfeasible level of maintenance, such as mopping the floor after the entry of each customer in bad weather. However, after a plaintiff has shown a hazardous condition existed and was the proximate cause of the injury, there is an inference that the defendant was negligent in its maintenance of the area. The burden of going forward with the evidence then shifts to the defendant, which must show that the defendant took reasonable preventive measures commensurate with the risk involved. Wellerman v Grand Union Stores, Inc., 221 A. 2d 513 (N.J.).
General factors relating to the reasonableness of the defendant’s preventive measures include the type and volume of merchandise, the type of display, the floor space used for customer service, and the volume of the business done. The operator of a self-service operation where objects are constantly being dropped may be held to a higher standard of care in the inspection and clearing of its premises than is the operator of a different type of business.
As demonstrated by this line of cases, Ms. Fahey was under no obligation to prove notice of the defective condition. Notice could be inferred from the presence of the orange juice container on the floor of this large self-service supermarket. Once the defective condition is proved, the burden then shifts to defendant to prove that it acted reasonably. In this case, defendant failed to act reasonably with regard to the defective condition proved by Ms. Fahey. As the granting of the judgment n.o.v. was based on an alleged failure by plaintiff to prove notice, the lower court’s order should be reversed.


CONCLUSION

For the foregoing reasons, the order granting defendant’s motion for judgment notwithstanding the verdict should be reversed, and judgment in favor of plaintiff Dorothy Fahey in the amount of $160,000.00 should be entered.


Respectfully submitted,
Plaintiff,
By her attorneys,


Jeffrey N. Roy (BBO #548618)
Paul E. Ravech (BBO #552313)
RAVECH, ROY & RAVECH, P.C.
84 State Street
Boston, MA 02109
(617) 720-0500

TABLE OF AUTHORITIES

Cases

Benson v. Allphin, 786 F.2d 268 (7th Cir. 1986) 9

Mounsey v. Ellard, 363 Mass. 693 (1973) 10, 11

Beach v. S.S. Kresge Co., 302 Mass. 544 (1939) 16

Anjou v. Boston Elevated Rail Co., 208 Mass. 273 (1911) 12, 13

Bonnette v. K. Mart, 502 So. 2d 202 19

Bonofiglio v Commercial Union Ins. Co., 411 Mass 31 (1991) 8, 9

Bozza v. Vornado, Inc., 42 N.J. 355, 200 A. 2d 777 (1964) 18, 20

Bridgman v. Safeway Stores, Inc., 348 P.2d 696 (Cal. 1960) 15

Central Bridge Corp. v. Butler, 68 Mass. 130, 132 (1854) 18

Ciminski v. Finn Corporation, Inc., 13 Wash. App. 815, 537 P.2d 850 (1975)
16, 20

Cobb v Skaggs, 661 P.2d 73 20

Foley v. F.W. Woolworth Co., 293 Mass. 232 13

Gallagher v Stop & Shop, Inc., 332 Mass. 560 13

Hall v. Horizon House Microwave, Inc., 24 Mass. App. Ct. 84 (1987) 7

House of Koscot Dev. Corp. v. American Line Cosmetics, Inc., 468 F.2d 64 (5th Cir. 1972) 9

Kavlich v. Kramer, 315 So.2d 282, 284-285 (1975) 20

Lang v. Winn Dixie Louisiana, Inc., (1969) LA App. 1st Cir.) 230 So. 2d 383
19

Little v. Bankers Life and Gas Co., 426 F. 2d 509 (5th Cir. 1970) 7

McKinnon v. Berwyn, 750 F.2d 1383 (7th Cir. 1984) 9

Negri v. Stop & Shop, Inc., 65 N.Y. 2d 625, 491 N.Y.S. 2d 151, 480 N.E. 2d 740 (1985) 14

Nettles v. Winn Dixie, 496 So. 2d 1296. 19

Oliveri v. Massachusetts Bay Transportation Authority, 363 Mass. 165 (1973)
10-13

Rhodes v. El Rancho Market, 4 Ariz. App. 183, 418 P.2d 613 21

Rossley v. S.S. Kresge Co., 339 Mass 654 13

Safeway Stores v. Lucas, 410 F.2d 603 15

Smith v. Hill, 232 Mass. 188, 190, aff'd, 260 U.S. 592, 67 L.Ed. 419, 43 S.Ct. 219 (1919) 18

Southeastern Pennsylvania Transp. Authority v Transit Casualty Co., 412 F. Supp. 839 (DC Pa. 1976) 7

Steinhorst v. H.C. Prange Co., 180 N.W.2d 525, 527 (1970) 20

Uchman v. Polish Natl. Home, Inc., 330 Mass. 563 14

Upham v. Chateau DeVille Dinner Theatre, 380 Mass. 350 (1980) 11

Wexler v. Stanelsky Memorial Chapel of Brookline, Inc., 2 Mass. App. Ct. 750 (1975) 10

Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513, 514 (1966)
15, 21

Young v. Food Fair, Inc., 337 Mass. 323 13


 

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