Wexler v. Stanetsky Memorial Chapel of Brookline, Inc.
Wexler v. Stanetsky Memorial Chapel of Brookline, Inc.
Opinion of the Court
This is an action of tort in which the plaintiff seeks to recover for personal injuries suffered when she slipped and fell on the lobby floor of the defendant’s funeral home. At the close of the plaintiff’s evidence the defendant rested and moved for a directed verdict. The trial judge denied this motion, and, after the return of a verdict for the plaintiff, also denied the defendant’s motion for the entry of judgment under leave reserved. The case is here on the defendant’s exceptions to the denial of both motions.
The facts are summarized in their aspect most favorable to the plaintiff. On December 22, 1970, at about 12:30 p.m., the plaintiff, aged seventy, arrived at the
A half hour before she arrived, a smaller pool of relatively clear water, apparently tracked into the lobby by people entering the funeral home, had been observed at the same spot. An employee of the defendant was seen near it. The area of wetness grew in size and became more muddy as a number of people entered the building in the half hour before the plaintiff arrived.
In our view this is a case in which “the transitory conditions of [the] premises, due to normal use in wet weather, according to ordinary experience could not in reason have been prevented.” Lanagan v. Jordan Marsh Co. 324 Mass. 540, 542 (1949). See Tariff v. S. S. Kresge Co. 299 Mass. 129, 130 (1937); Moors v. Boston Elev. Ry. 305 Mass. 81, 82-83 (1940); Policronis v. Jordan Marsh Co. 333 Mass. 767 (1955); Faulkner v. J. H. Corcoran & Co. Inc. 342 Mass. 94, 95-96 (1961). Compare Lowe v. National Shawmut Bank, 363 Mass. 74, 77-78 (1973). There was no evidence to indicate that the water on the floor was more than “inevitably results from the tramping of many feet in such a place . . . under the conditions of weather then existing” (Moors v. Boston Elev. Ry., supra, at 82; Faulkner v. J. H. Corcoran & Co. Inc., supra, at 96), or that it was of unusual depth or extent (Grace v. Jordan Marsh Co. 317 Mass. 632, 633 [1945]). We can infer from the flatness of the floor, as shown in a picture of the lobby, that any deposit of water on it “must have been thin and perhaps not much more than a film.” Leary v. Jordan
Since in the circumstances here disclosed, it would have been impractical to keep the lobby floor dry, our conclusion is not affected by the fact that here, unlike in Tariff v. S. S. Kresge Co., supra, and Moors v. Boston Elev. Ry., supra, there was evidence that water had been on the lobby floor for at least a half hour. See Policronis v. Jordan Marsh Co., supra.
We have not been directed to nor have we found authority to support the plaintiff’s contention that the owner of a funeral home, whose invitees may arrive intermittently, should for that reason be held to a higher standard of care than, for example, that required to be exercised by a public transportation system or a department store toward its invitees. Such cases as Moors v. Boston Elev. Ry., supra, and Faulkner v. J. H. Corcoran & Co. Inc., supra, are not distinguishable on that ground. The cases cited by the plaintiff involving falls on snow or ice, including Watts v. Rhodes, 325 Mass. 697 (1950), and Thornton v. First Natl. Stores, Inc. 340 Mass. 222, 224 (1960), are distinguishable from the present case. See Lanagan v. Jordan Marsh Co. 324 Mass, at 541-542. To the extent that cases cited by the plaintiff from other jurisdictions lead toward a result different from that reached by us, we do not follow them.
So ordered.
Powell v. Deifells, Inc. 251 N. C. 596, 600 (1960), and Sommese v. Maling Bros. Inc. 65 Ill. App. 2d 223, 228, 237 (1965), are distinguishable in that in those cases there was evidence that the surface on
Reference
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- Mary M. Wexler v. Stanetsky Memorial Chapel of Brookline, Inc.
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- 13 cases
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- Published