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COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
MIDDLESEX, Ss. CIVIL ACTION NO. 2281CV00481
SUSAN GOLDEN,
ILED
Plaintiff, INTHE OFFICE
CLERK GF Courts E
Vv.
MAR G4 2024
JRK PROPERTY HOLDINGS, INC.,
FOR MIDDiEs: EX COUNTY
Defendant.
CLERK
PLAINTIFF, SUSAN GOLDEN’S MEMORANDUM IN SUPPORT OF PLAINTIFF'S
4 OPPOSITION TO DEFENDANT, JRK PROPERTY HOLDINGS, INC.’S MOTION FOR
SUMMARY JUDGMENT
NOW COMES the plaintiff, Susan Golden, by her attorney in the above-captioned matter
and hereby states her opposition to the defendant, JRK Property Holdings, Inc.’s Motion for
Summary Judgment pursuant to Rule 56, Mass. R. Civ. P.
I STATEMENT OF THE CASE
This negligence action arises out of serious personal injuries sustained by 63-year-old
Susan Golden on February 4, 2019, when she slipped and fell on an accumulation of slush and
water inside the entry vestibule of her apartment building, Residences at Tewksbury Commons,
located at 1 Old Boston Road, Tewksbury, Massachusetts. At the time of her fall, the property
was owned and managed by the defendant, JRK Property Holdings, Inc. (JRK), There was no
anti-slip matting inside the subject vestibule, as it had been removed by JRK personnel. Asa
result of her fall, Ms. Golden suffered serious personal injuries including a comminuted
trochanteric angulated left proximal femur fracture, which required surgical intervention and
resulted in pain and suffering, loss of enjoyment of life, and medical bills.
Under prior ownership, the subject vestibule had safety matting in place to prevent
residents and guests from slipping and falling. When the defendant, JRK, took over ownership
and management of the property, the safety matting inside the vestibule was removed, leaving
exposed wood laminate flooring, which became slippery and unreasonable dangerous when wet.
In the months leading up to Ms. Golden’s injury, JRK was aware of the dangerous condition
inside the vestibule but took no action to mitigate the hazards, JRK was responsible for the safety
of its tenants and guests. It owed a duty of reasonable care to its tenants and guests to keep its
premises free from hazards and dangerous conditions. Its failure to do so caused the serious
injuries sustained by Ms. Golden.
I. STATEMENT OF FACTS
On February 4, 2019, JRK was the owner and property manager of Residences at
Tewksbury Commons, an apartment complex in Tewksbury, Massachusetts. Statement of
Undisputed Material Facts J 1. At that time, the plaintiff, Susan Golden, was a tenant of
Residences at Tewksbury Commons. Statement of Undisputed Material Facts 2.
On the afternoon of February 4, 2019, Ms. Golden and her friend, Mark Roberts, took a
trip to Seven-Eleven. Statement of Undisputed Material Facts § 3. When leaving, Ms. Golden
observed the vestibule of the apartment building to be wet and slushy with rock salt mixed in.
Statement of Undisputed Material Facts J 4. The floor was soaked. Statement of Undisputed
Material Facts { 6. The flooring of the subject vestibule was either hardwood or some kind of
laminate. (See Exhibit 3, Deposition of Susan Golden, p. 16, lines 6-11). The wet, slushy
condition of the vestibule looked like it had been there for a while. (See Exhibit 3, Deposition of
Susan Golden, p. 82, lines 1-7). Ms. Golden never notified JRK because she felt there was no
reason for her to call or say anything to them because they don’t do anything. (See Exhibit 3,
Deposition of Susan Golden, p. 87, lines 13-21),
When Ms. Golden retumed from Seven-Eleven and first stepped into the vestibule, she
slipped on the floor, lost her footing very quickly, and fell hard. (See Exhibit 3, Deposition of
Susan Golden, p.30 lines 13-22, p. 31 lines 1-4), She took one or two steps into the vestibule and
fell right away. (See Exhibit 3, Deposition of Susan Golden, p. 32, lines 6-8). She heard her bone
crack, and her leg was hanging off. (See Exhibit 3, Deposition of Susan Golden, p. 37, lines 6-
10). While waiting for EMS, her back and pants were soaked. (See Exhibit 3, Deposition of
Susan Golden, p. 43, lines 7-12), There were no mats inside the vestibule and mats were not
placed inside the vestibule until after her fall. (See Exhibit 3, Deposition of Susan Golden, p. 15,
lines 4-11).
Ms. Golden suffered a left femur fracture, which required surgery. (See Exhibit 2,
Plaintiff's Answers to Interrogatories, Answer 9). This is a permanent injury, she struggles with
daily pain and limited mobility, she has hardware inside her left leg and hip, her leg is bent at an
awkward angle, and she had significant scarring from surgery. (See Exhibit 2, Plaintiff's
Answers to Interrogatories, Answer 9).
A few hours before Ms. Golden fell, John DiPaolo, a resident of Residences at
Tewksbury Commons, left his apartment and observed that the vestibule floor was wet from
slush, had debris, and was very slippery and dangerous. (See Exhibit 5, Statement of John
DiPaolo). According to Mr. DiPaolo, there was about a half inch of slush in the vestibule and
debris like junk mail that had been dumped on the floor. (See Exhibit 6, Deposition of John
DiPaolo, p. 23, lines 13-24, p. 24, lines 1-8).
Two months prior to Ms. Golden’s fall, Mr. DiPaolo, contacted the management office
to let them know how dangerous the subject area was. (See Exhibit 5, Statement of John
DiPaolo). He was primarily concerned because his wife was disabled. (See Exhibit 5, Statement
of John DiPaolo). He explained to the girl in the office that this area was dangerous and would
become slippery, but management did nothing to fix the situation. (See Exhibit 5, Statement of
John DiPaolo). About one month prior to Ms. Golden’s fall, Mr. DiPaolo called management
again to tell them, once more, how dangerous the area was and that someone would fall and get
hurt. (See Exhibit 5, Statement of John DiPaolo). Again, nothing was done. (See Exhibit 5,
Statement of John DiPaolo).
Under prior ownership, management used to clean the subject area regularly. (See Exhibit
5, Statement of John DiPaolo). They also had a slip resistant rug in the vestibule. (See Exhibit 5,
Statement of John DiPaolo). The mat was like those used in stores to prevent people from
slipping. (See Exhibit 6, Deposition of John DiPaolo, p. 35, lines 13-18). JRK removed the rug
and never took care of or cleaned the area. (See Exhibit 5, Statement of John DiPaolo), When
JRK removed the rug/mat in the vestibule, Mr. DiPaolo thought they were going to replace it
with a new one, a better one, but they never did — they removed it and that was the end of it. (See
Exhibit 6, Deposition of John DiPaolo, p. 36, lines 17-24). There was no mat in the vestibule
from when Mr. DiPaolo complained in November or December through February 4, 2019. (See
Exhibit 6, Deposition of John DiPaolo, p. 37, lines 1-11). The vestibule was “chaos” and “a
mess.” (See Exhibit 6, Deposition of John DiPaolo, p. 18, lines 1-2). Mr. DiPaolo complained to
the office two or three times that the vestibule was dangerous. (See Exhibit 6, Deposition of John
DiPaolo, p. 18, lines 2-5). When JRK removed the rug/rubber mat, they left the exposed floor,
which was really slippery. (See Exhibit 6, Deposition of John DiPaolo, p. 18, lines 6-9).
JRK personnel are responsible for the safety of tenants and guests on their property. (See
Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p, 27, lines 4-6). The safety of
their tenants and guests is paramount. (See Exhibit 1, 30(b)(6) Deposition of JRK Property
Holdings, Inc., p. 27, lines 7-9). JRK had no direct knowledge of whether there was a mat in the
vestibule on February 4, 2019, only that it was general practice to have a mat there and that a mat
should have been there. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p.
38, lines 11-16). The purpose of the mat in the vestibule was for residents to wipe their feet and
for safety. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p. 38, lines 17-
24). According to JRK, a wet, slick floor is a hazard. (See Exhibit 1, 30(b)(6) Deposition of JRK
Property Holdings, Inc., p. 39, lines 12-15). Putting non-slip matting on a laminate floor that
does not absorb moisture is a safety measure. (See Exhibit 1, 30(b)(6) Deposition of JRK
Property Holdings, Inc., p. 42, lines 2-7). Itis the property management’s responsibility to
ensure that the proper matting is in place to protect residents and guests. (See Exhibit 1, 30(b)(6)
Deposition of JRK Property Holdings, Inc., p. 43, lines 18-24, p. 44, lines 1-7).
Til. ARGUMENT
A. Standard of Review for Ruling on 4 Motion for Sunimary Judgment,
The party moving for summary judgment has the burden of affirmatively demonstrating
that there is no genuine issue of material fact on each and every relevant issue raised by the
pleadings. Rule.56, Mass. R. Civ. P. This is true even though the movant would have no burden if
the case were to go to trial. Attomi¢y-Genéral-v. Bailey, 386 Mass. 367, cert. denied, 103 8. Ct. 301
(1982); Hopkiris v.-F.W: Woolworth’Go.. 11 Mass. App. Ct. 703 (1981). The moving party further
bears the burden of demonstrating that he is entitled to judgment as a matter of law. Pederson v.
.
Tita e. Ini. 404 Mass. 14, 17 (1989); Foley v: Matulewicz:.17 Mass. App. Ct. 1004 (1984).
If the moving party does not bear the burden of proof at trial, it must either 1) submit
affirmative evidence negating an essential element of the nonmoving party's claim; or 2)
demonstrate that the nonmoving party's evidence is insufficient to establish its claim.
Kouirouvacilis v. General. Motors‘Corp., 410 Mass. 706, 711 (1991).
Additionally, the Court must not usurp the function of the fact finder by passing on the
credibility of the witnesses or evaluating the weight of the evidence. Attorney. Genefal v. Brown
400 Mass, 826, 832 (1987); Ruggiero v. Costa, 28 Mass. App. Ct. 967, 967 (App. Ct. 1990).
In deciding a motion for summary judgment, the trial court must construe all presumptions,
inferences, and disputed facts against the movant and in favor of the opposing party. Blare v.
Husky Injection Molding Sys. Boston. Inc., 419 Mass. 437, 438; Coveney v; Presidént and
Trustees of Collége of Holy Cross. 388 Mass. 16 (1983). Failure of the moving party to
affirmatively establish that there is no dispute as to a material fact will defeat his motion. Foley,
supra. Thus, the defendant’s motion must fail unless they can demonstrate the absence of any
factual dispute as to the plaintiff, Susan Golden’s negligence claims. The existence of a disputed
factual issue precludes the entry of summary judgment. Youngv. Reed, 6 Mass. App. Ct. 18
(1978).
In an action for negligence, summary judgment is disfavored due to the jury’s unique
position and capability in applying the reasonable person standard. Kelly v. Brigham and Women’s
Hospital, 51 Mass, App. Ct. 297, 300 (2001), citing Foley v. Matulewicz, 17 Mass. App. Ct. 1004,
1005 (1984). Generally, summary judgment is not an appropriate means to resolve negligence
cases like this one since negligence usually involves a question of fact. Mullins-v. Pine Manor,
College, 389 Mass. 47, 56 (1983).
B. Duty of Care of Landowne:
Under Massachusetts Law, a property owner has “a duty to act as a reasonable person
under all of the circumstances including the likelihood of injury to others, the probable seriousness
of such injuries, and the burden of reducing or avoiding the risk.” Papadopoul ilos‘v. Target Corp...
930 N.E.2d 142, 154 (Mass. 2010), (internal quotations and citation omitted). This duty is the same
with respect to all hazards, including those arising from weather-related conditions. Jd. “Ifa
property owner knows or reasonably should know of a dangerous condition on its property,
whether arising from and accumulation of snow and ice, or rust on a railing, or a discarded banana
peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect [them]
against the danger.” Jd.
In Massachusetts, if an owner of controller of property knows or reasonably should know
of a dangerous condition on its premises, the owner or controller owes a duty to make reasonable
efforts to protect lawful visitors against the danger. Papadopoulos:v. Target Corp. 457 Mass. 368
(2010).
C. JRK Breached its Duty of Care to the Plaintiff
IJRK breached its duty of reasonable care to Ms. Golden by failing to maintain its premises
in a reasonably safe condition, free from hazards, JRK allowed an unreasonably dangerous,
slippery condition to exist inside the subject vestibule, which caused Ms. Golden’s fall. IRK
removed safety matting designed to mitigate such slippery, hazardous conditions and, further, it
had actual notice from one of its tenants that the area was dangerous and would become slippery
when wet. JRK’s burden of reducing or avoiding the risk was de minimis, as it simply had to
ensure proper matting was in place and regularly clean the area.
On February 4, 2019, Ms. Golden was a tenant of Residences at Tewksbury Commons,
property owned and managed by JRK. The defendant, JRK, admits that it is responsible for the
safety of tenants and guests on its property. JRK further admits that a wet, slick floor is a hazard,
that putting non-slip matting on a laminate floor that does not absorb moisture is a safety measure,
that a mat should have been present inside the subject vestibule, which was their general practice,
and that it was JRK’s responsibility to ensure that the proper matting was in place to protect
residents and guests. Ms. Golden testified that there was no weather matting inside the subject
vestibule at the time of her fall. John DiPaolo testified that there was no matting in the vestibule
from when Mr. DiPaolo complained in November or December through February 4, 2019.
Within two months prior to Ms. Golden’s fall, Mr. DiPaolo contacted JRK management
on two or three separate occasions, reporting that subject vestibule was dangerous, that it would
become very slippery, and that someone would fall and get hurt. According to Mr. DiPaolo, JIRK
did nothing in response to his reported concerns, The vestibule remained in chaos and a mess.
Accordingly, JRK had actual notice of the dangerous conditions inside the vestibule. Just as Ms.
Golden’s fall and injury inside the subject vestibule was foreseeable to Mr. DiPaolo, it was
foreseeable to JRK.
D. ‘The Facts of this Case Are Distinguishable from Wexler.
In its Motion, the defendant relies on Wexler v. Stane! Memorial Cl el of Brookline.
Inc., 2 Mass. App. Ct. 750 (1975), arguing that the condition that caused Ms. Golden’s fall was a
“transitory condition” and, therefore, JRK cannot be held liable. However, the facts of the case at
bar are distinguishable from Wexler.
In Wexler, plaintiff arrived at the defendant's funeral home to attend a funeral at 1:00 P.M.
Snow had been falling for an hour or two. The plaintiff entered the funeral home lobby through a
covered entranceway, stepped upon a small carpet located just inside the door, took one step off
the carpet, and fell. A half hour before she arrived, a small 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. Wexler v. fanets] Mein’! Ghapel.of Brookli ; 2 Mass. App. Ct. 750
(1975).
The Wexler Court held that, in their view, this was “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.” Wexler v. Stanet Mem! Cl e] of Brookline, Inc.
2 Mass. App. Ct. 750, 751 (1975) (internal quotations and citation omitted), The Court noted that
“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,
or that it was of unusual depth or extent.” Jd. Further, the Court opined that it could, “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,” and that “there was no evidence that the
floor, for any reason, became peculiarly slippery when wet.” Id.
The matter at bar is simply not a case concerning a “transitory condition” from water
being tracked in during a weather event. In fact, there was no active weather event. This case is
about the defendant JRK’s dereliction of duty over the course of months in its failure to clean
and maintain the subject vestibule. This case is about their removal of the non-slip safety
matting, which could have prevented Ms. Golden’s fall.
‘
Mr. DiPalo, a resident of Residences at Tewksbury Commons, testified that the vestibule
was a “mess” and “chaos.” He testified that there was about a half inch of slush on the floor and
that debris, like junk mail, had been dumped on the floor. He testified that the vestibule was wet,
slippery, and dangerous. Ms. Golden testified that the floor was “soaked” and that, while on the
floor waiting for EMS to arrive, her clothes were “soaked.” In the matter at bar, and unlike the
facts in Wexler, there is evidence that the water, slush, and debris on the floor was “more than
inevitably results from the tramping of many feet in such a place” and that it was “of unusual
depth or extent.” There is evidence that the water, slush, and debris was more than just “thin” or
a “film,” as those terms were used in Wexler.
In Wexler, there was no evidence that the floor became particularly slippery when wet. In
the matter at bar, Mr. Dipaolo testified that the flooring of the subject vestibule was very slippery
and dangerous. On multiple occasions in the months prior to Ms. Golden’s fall, Mr. DiPaolo
contacted JRK management and notified them that the vestibule was dangerous and would
become slippery. He even told them that he feared someone would fall and get hurt.
In Wexler, there was no evidence that the water had been there for much more than thirty
minutes. In the matter at bar, Ms. Golden testified that the wet, slushy condition looked like it
had been there for a while. Further, Mr. DiPaolo, a few hours prior to Ms. Golden’s fall, observed
that the vestibule was wet from slush, had debris, and was very slippery and dangerous.
Lastly, in Wexler, there was no evidence that anti-slip weather matting had been removed
prior to the incident. In this case, there is testimony that, before JRK took over the property, there
was anti-slip weather matting in the vestibule and that JRK removed the weather matting,
leaving an exposed wood laminate floor. JRK admitted that the matting “should” have been in
the subject vestibule for safety reasons. JRK’s admission that the weather matting should have
10
been in the vestibule for safety reasons and the multiple complaints to management from Mr.
DiPaolo about the vestibule, show that JRK had notice of the dangerous condition and that Ms.
Golden’s fall was foreseeable.
E. Wexler’s “Transitory Water” Doctrine has been Abolished...
The defendant cites the transitory water rule set forth in Wexler'v, Stanetsky Memorial
Chapel.of Brookline, Inc., 2 Mass. App. Ct. 750 (1975). However, the Wexler case was heard
decades before Papadopoulos v. Target Corp., 457 Mass. 368 (2010) and Sheehan v..Roche Bros.
Supermarkets. Inc:, 448 Mass. 780 (2007), both of which moved the bar and set the current
standard for proof of a slip and fall premises liability case in Massachusetts.
In Sheehan, the Supreme Judicial Court altered the notice requirement in premises liability
cases. Sheehan involved a patron of a grocery store who slipped and fell on a grape. The lower
court applied traditional principles of notice and granted summary judgment to the store because
the plaintiff could not prove that the store had notice. There was no evidence that the store knew
that the grape was on the floor or that the grape had been on the floor for a time long enough that
the store should have known about it. Jd. at 782.
Reversing and remanding, the SJC analyzed three different approaches throughout the
country: the traditional approach, the mode of operation approach, and the burden shifting
approach, Under the “mode of operation approach,” the plaintiff must prove that the injury was
attributable to a reasonably foreseeable dangerous condition on the owner’s premises related to the
store’s mode of operation. After analyzing the three approaches, the Sheehan Court held that “the
mode of operation approach” was preferable. Sheehan v. Roche Bros. Supermarkets; Inc., 448
Mass. 780 (2007). “The mode of operation approach is in our view the more preferable, and we
adopt it.” Id, at 788.
11
In 2015, the Supreme Judicial Court was faced with whether the “mode of operation
approach,” adopted in Sheehan, applied in all premises liability cases or was limited to self service
establishments. Satkisian v: Céticept Restaurants, Inc., 471 Mass. 679 (2015). Sarkisian involved a
slip and fall on the dance floor of a night club due to liquid on the floor. The lower court granted
summary judgment for the defendant, reasoning that the plaintiff could not prove how long the
liquid had been on the dance floor. This was affirmed by the Appellate Division of the District
Court and the Massachusetts Appeals Court.
The SJC reversed the order of summary judgment and remanded the case to the Superior
Court. In so doing, it observed that there was no basis for limiting the mode of operation approach.
to self-service establishments and applied it to all premises liability cases. Jd. at 685. Applying this
approach, it was foreseeable that liquid would be spilled on the floor of a dark night club with
strobe lights, where patrons were allowed to drink on the dance floor while dancing. Although
there was no evidence as to how long the liquid had been on the floor, that was not the appropriate
inquiry; rather, foreseeability of a condition satisfies the notice requirements under the mode of
operation approach in premises liability cases. Td.
In Papadopoulos'v. ‘Target Corp., 457 Mass. 368 (2010), the SIC ruled that a property
owner has the same duty with respect to hazards arising from ice and snow as it does from all other
hazards. In Papadopoulos, the plaintiff slipped on ice that had formed near a median at the Liberty
Tree Mall. A snowplow had cleared the lot and deposited a pile of snow on the median. The ice that
caused the plaintiff’s fall had either fallen from the snow pile or had melted and refroze on the
pavement. Either way, it was determined that the ice that caused the plaintiff’s fall was a “natural
accumulation.” The lower court granted the defendant’s motion for summary judgment, the
Appeals Court affirmed, and the plaintiff applied for further appellate review.
12
The Supreme Judicial Court in handling the appeal, discussed the distinction between a slip
and fall on snow or ice that was an “artificial accumulation” versus a “natural accumulation.”
Under the then existing rule in Massachusetts, a property owner had no duty to remove natural
accumulations of snow or ice and could not be held liable for failure to do so. Jd. at 373. In other
words, property owners could not be held liable for failing to mitigate hazards they did not create.
However, the Papadopoulos Court abandoned the artificial versus natural accumulation
distinction, holding, “We will now apply to hazards arising from ice and snow the same obligation
that a property owner owes to lawful visitors as to all other hazards: a duty to act as a reasonable
person under all the circumstances including the likelihood of injury to others, the probable
seriousness of such injuries, and the burden of reducing or avoiding the risk. Jd. at 383. The entry
of summary judgment was reversed, and the case was remanded.
The Wexler decision, upon which JRK relies in its Motion, was based on the “natural
accumulation” rule, holding that the accumulation of water could not have been prevented given
the conditions of weather then existing. However, the natural accumulation versus artificial
accumulation rule was abandoned in Papadopoulos. See Stapleton v. Target Corp., 2011 WL
8198179 (Stems, J. C.A. No. 11-CV-10378); Robbins v. Plymouth Persy’s Place, 2013 WL
12311120 (Tauro, J. C.A. No. 12-10261) (The SJC abandoned the natural accumulation of snow
and ice exception on which Wexler appears to have been based).
More recently, in a December 2018 case, Judge Moriarty, sitting in Plymouth Superior
Court, applied the reasoning set forth in Papadopoulos and Sheehan and implicitly held that the
Wexler “transitory water doctrine” had been overruled. The issue is no longer whether the
condition is natural or unnatural, but whether it is foreseeable that such a condition would exist,
13
and whether the defendant used due care in protecting the plaintiff against its dangers. Holden v.
Wal-mart Stores East, LP, 2018 WL 7048233 (2018).
In light of the Sheehan and Sarkisian Courts’ adoption of the “mode of operation
approach,” the holding in Papadopoulos abolishing the natural versus unnatural accumulation
distinction and applying the reasonable person standard, and the more recent cases abandoning the
“transitory water doctrine” of Wexler, upon which the defendant relies, the defendant’s Motion for
Summary Judgment must be denied.
Iv. CONCLUSION
There is ample evidence in this case to establish that the defendant, JRK, failed to take
reasonable measures to mitigate the hazardous and unreasonably dangerous condition of the
subject vestibule, which caused Ms. Golden’s injury. There is evidence that JRK removed the anti-
slip weather matting inside the vestibule prior to her fall. There is evidence that there was no
weather matting in the vestibule on February 4, 2019, the date of her fall. There is evidence that the
subject vestibule was a mess and wet with slush and debris on the date of her fall, which had been
there for hours. There is evidence that the flooring of the subject vestibule became slippery when
wet. There is evidence that JRK was notified on multiple occasions prior to Ms. Golden’s fall that
the subject vestibule was dangerous and slippery. For the reasons above and based on the law in
this Commonwealth, the Defendants Motion for Summary Judgment should be denied.
14
Respectfully submitted,
The Plaintiff,
"Wl
Douglas J. Henderson
BBO# 683562
Kiley Law Group, LLC
342 North Main Street
Andover, MA 01810
P: (978) 474-8670
F: (978) 474-8946
dhenderson@tomkileylaw.com
aQ/a3fp0o.f
Date
15
Preview
|O.> COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT MIDDLESEX, Ss. CIVIL ACTION NO. 2281CV00481 SUSAN GOLDEN, ILED Plaintiff, INTHE OFFICE CLERK GF Courts E Vv. MAR G4 2024 JRK PROPERTY HOLDINGS, INC., FOR MIDDiEs: EX COUNTY Defendant. CLERK PLAINTIFF, SUSAN GOLDEN’S MEMORANDUM IN SUPPORT OF PLAINTIFF'S 4 OPPOSITION TO DEFENDANT, JRK PROPERTY HOLDINGS, INC.’S MOTION FOR SUMMARY JUDGMENT NOW COMES the plaintiff, Susan Golden, by her attorney in the above-captioned matter and hereby states her opposition to the defendant, JRK Property Holdings, Inc.’s Motion for Summary Judgment pursuant to Rule 56, Mass. R. Civ. P. I STATEMENT OF THE CASE This negligence action arises out of serious personal injuries sustained by 63-year-old Susan Golden on February 4, 2019, when she slipped and fell on an accumulation of slush and water inside the entry vestibule of her apartment building, Residences at Tewksbury Commons, located at 1 Old Boston Road, Tewksbury, Massachusetts. At the time of her fall, the property was owned and managed by the defendant, JRK Property Holdings, Inc. (JRK), There was no anti-slip matting inside the subject vestibule, as it had been removed by JRK personnel. Asa result of her fall, Ms. Golden suffered serious personal injuries including a comminuted trochanteric angulated left proximal femur fracture, which required surgical intervention and resulted in pain and suffering, loss of enjoyment of life, and medical bills. Under prior ownership, the subject vestibule had safety matting in place to prevent residents and guests from slipping and falling. When the defendant, JRK, took over ownership and management of the property, the safety matting inside the vestibule was removed, leaving exposed wood laminate flooring, which became slippery and unreasonable dangerous when wet. In the months leading up to Ms. Golden’s injury, JRK was aware of the dangerous condition inside the vestibule but took no action to mitigate the hazards, JRK was responsible for the safety of its tenants and guests. It owed a duty of reasonable care to its tenants and guests to keep its premises free from hazards and dangerous conditions. Its failure to do so caused the serious injuries sustained by Ms. Golden. I. STATEMENT OF FACTS On February 4, 2019, JRK was the owner and property manager of Residences at Tewksbury Commons, an apartment complex in Tewksbury, Massachusetts. Statement of Undisputed Material Facts J 1. At that time, the plaintiff, Susan Golden, was a tenant of Residences at Tewksbury Commons. Statement of Undisputed Material Facts 2. On the afternoon of February 4, 2019, Ms. Golden and her friend, Mark Roberts, took a trip to Seven-Eleven. Statement of Undisputed Material Facts § 3. When leaving, Ms. Golden observed the vestibule of the apartment building to be wet and slushy with rock salt mixed in. Statement of Undisputed Material Facts J 4. The floor was soaked. Statement of Undisputed Material Facts { 6. The flooring of the subject vestibule was either hardwood or some kind of laminate. (See Exhibit 3, Deposition of Susan Golden, p. 16, lines 6-11). The wet, slushy condition of the vestibule looked like it had been there for a while. (See Exhibit 3, Deposition of Susan Golden, p. 82, lines 1-7). Ms. Golden never notified JRK because she felt there was no reason for her to call or say anything to them because they don’t do anything. (See Exhibit 3, Deposition of Susan Golden, p. 87, lines 13-21), When Ms. Golden retumed from Seven-Eleven and first stepped into the vestibule, she slipped on the floor, lost her footing very quickly, and fell hard. (See Exhibit 3, Deposition of Susan Golden, p.30 lines 13-22, p. 31 lines 1-4), She took one or two steps into the vestibule and fell right away. (See Exhibit 3, Deposition of Susan Golden, p. 32, lines 6-8). She heard her bone crack, and her leg was hanging off. (See Exhibit 3, Deposition of Susan Golden, p. 37, lines 6- 10). While waiting for EMS, her back and pants were soaked. (See Exhibit 3, Deposition of Susan Golden, p. 43, lines 7-12), There were no mats inside the vestibule and mats were not placed inside the vestibule until after her fall. (See Exhibit 3, Deposition of Susan Golden, p. 15, lines 4-11). Ms. Golden suffered a left femur fracture, which required surgery. (See Exhibit 2, Plaintiff's Answers to Interrogatories, Answer 9). This is a permanent injury, she struggles with daily pain and limited mobility, she has hardware inside her left leg and hip, her leg is bent at an awkward angle, and she had significant scarring from surgery. (See Exhibit 2, Plaintiff's Answers to Interrogatories, Answer 9). A few hours before Ms. Golden fell, John DiPaolo, a resident of Residences at Tewksbury Commons, left his apartment and observed that the vestibule floor was wet from slush, had debris, and was very slippery and dangerous. (See Exhibit 5, Statement of John DiPaolo). According to Mr. DiPaolo, there was about a half inch of slush in the vestibule and debris like junk mail that had been dumped on the floor. (See Exhibit 6, Deposition of John DiPaolo, p. 23, lines 13-24, p. 24, lines 1-8). Two months prior to Ms. Golden’s fall, Mr. DiPaolo, contacted the management office to let them know how dangerous the subject area was. (See Exhibit 5, Statement of John DiPaolo). He was primarily concerned because his wife was disabled. (See Exhibit 5, Statement of John DiPaolo). He explained to the girl in the office that this area was dangerous and would become slippery, but management did nothing to fix the situation. (See Exhibit 5, Statement of John DiPaolo). About one month prior to Ms. Golden’s fall, Mr. DiPaolo called management again to tell them, once more, how dangerous the area was and that someone would fall and get hurt. (See Exhibit 5, Statement of John DiPaolo). Again, nothing was done. (See Exhibit 5, Statement of John DiPaolo). Under prior ownership, management used to clean the subject area regularly. (See Exhibit 5, Statement of John DiPaolo). They also had a slip resistant rug in the vestibule. (See Exhibit 5, Statement of John DiPaolo). The mat was like those used in stores to prevent people from slipping. (See Exhibit 6, Deposition of John DiPaolo, p. 35, lines 13-18). JRK removed the rug and never took care of or cleaned the area. (See Exhibit 5, Statement of John DiPaolo), When JRK removed the rug/mat in the vestibule, Mr. DiPaolo thought they were going to replace it with a new one, a better one, but they never did — they removed it and that was the end of it. (See Exhibit 6, Deposition of John DiPaolo, p. 36, lines 17-24). There was no mat in the vestibule from when Mr. DiPaolo complained in November or December through February 4, 2019. (See Exhibit 6, Deposition of John DiPaolo, p. 37, lines 1-11). The vestibule was “chaos” and “a mess.” (See Exhibit 6, Deposition of John DiPaolo, p. 18, lines 1-2). Mr. DiPaolo complained to the office two or three times that the vestibule was dangerous. (See Exhibit 6, Deposition of John DiPaolo, p. 18, lines 2-5). When JRK removed the rug/rubber mat, they left the exposed floor, which was really slippery. (See Exhibit 6, Deposition of John DiPaolo, p. 18, lines 6-9). JRK personnel are responsible for the safety of tenants and guests on their property. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p, 27, lines 4-6). The safety of their tenants and guests is paramount. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p. 27, lines 7-9). JRK had no direct knowledge of whether there was a mat in the vestibule on February 4, 2019, only that it was general practice to have a mat there and that a mat should have been there. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p. 38, lines 11-16). The purpose of the mat in the vestibule was for residents to wipe their feet and for safety. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p. 38, lines 17- 24). According to JRK, a wet, slick floor is a hazard. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p. 39, lines 12-15). Putting non-slip matting on a laminate floor that does not absorb moisture is a safety measure. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p. 42, lines 2-7). Itis the property management’s responsibility to ensure that the proper matting is in place to protect residents and guests. (See Exhibit 1, 30(b)(6) Deposition of JRK Property Holdings, Inc., p. 43, lines 18-24, p. 44, lines 1-7). Til. ARGUMENT A. Standard of Review for Ruling on 4 Motion for Sunimary Judgment, The party moving for summary judgment has the burden of affirmatively demonstrating that there is no genuine issue of material fact on each and every relevant issue raised by the pleadings. Rule.56, Mass. R. Civ. P. This is true even though the movant would have no burden if the case were to go to trial. Attomi¢y-Genéral-v. Bailey, 386 Mass. 367, cert. denied, 103 8. Ct. 301 (1982); Hopkiris v.-F.W: Woolworth’Go.. 11 Mass. App. Ct. 703 (1981). The moving party further bears the burden of demonstrating that he is entitled to judgment as a matter of law. Pederson v. . Tita e. Ini. 404 Mass. 14, 17 (1989); Foley v: Matulewicz:.17 Mass. App. Ct. 1004 (1984). If the moving party does not bear the burden of proof at trial, it must either 1) submit affirmative evidence negating an essential element of the nonmoving party's claim; or 2) demonstrate that the nonmoving party's evidence is insufficient to establish its claim. Kouirouvacilis v. General. Motors‘Corp., 410 Mass. 706, 711 (1991). Additionally, the Court must not usurp the function of the fact finder by passing on the credibility of the witnesses or evaluating the weight of the evidence. Attorney. Genefal v. Brown 400 Mass, 826, 832 (1987); Ruggiero v. Costa, 28 Mass. App. Ct. 967, 967 (App. Ct. 1990). In deciding a motion for summary judgment, the trial court must construe all presumptions, inferences, and disputed facts against the movant and in favor of the opposing party. Blare v. Husky Injection Molding Sys. Boston. Inc., 419 Mass. 437, 438; Coveney v; Presidént and Trustees of Collége of Holy Cross. 388 Mass. 16 (1983). Failure of the moving party to affirmatively establish that there is no dispute as to a material fact will defeat his motion. Foley, supra. Thus, the defendant’s motion must fail unless they can demonstrate the absence of any factual dispute as to the plaintiff, Susan Golden’s negligence claims. The existence of a disputed factual issue precludes the entry of summary judgment. Youngv. Reed, 6 Mass. App. Ct. 18 (1978). In an action for negligence, summary judgment is disfavored due to the jury’s unique position and capability in applying the reasonable person standard. Kelly v. Brigham and Women’s Hospital, 51 Mass, App. Ct. 297, 300 (2001), citing Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984). Generally, summary judgment is not an appropriate means to resolve negligence cases like this one since negligence usually involves a question of fact. Mullins-v. Pine Manor, College, 389 Mass. 47, 56 (1983). B. Duty of Care of Landowne: Under Massachusetts Law, a property owner has “a duty to act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.” Papadopoul ilos‘v. Target Corp... 930 N.E.2d 142, 154 (Mass. 2010), (internal quotations and citation omitted). This duty is the same with respect to all hazards, including those arising from weather-related conditions. Jd. “Ifa property owner knows or reasonably should know of a dangerous condition on its property, whether arising from and accumulation of snow and ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect [them] against the danger.” Jd. In Massachusetts, if an owner of controller of property knows or reasonably should know of a dangerous condition on its premises, the owner or controller owes a duty to make reasonable efforts to protect lawful visitors against the danger. Papadopoulos:v. Target Corp. 457 Mass. 368 (2010). C. JRK Breached its Duty of Care to the Plaintiff IJRK breached its duty of reasonable care to Ms. Golden by failing to maintain its premises in a reasonably safe condition, free from hazards, JRK allowed an unreasonably dangerous, slippery condition to exist inside the subject vestibule, which caused Ms. Golden’s fall. IRK removed safety matting designed to mitigate such slippery, hazardous conditions and, further, it had actual notice from one of its tenants that the area was dangerous and would become slippery when wet. JRK’s burden of reducing or avoiding the risk was de minimis, as it simply had to ensure proper matting was in place and regularly clean the area. On February 4, 2019, Ms. Golden was a tenant of Residences at Tewksbury Commons, property owned and managed by JRK. The defendant, JRK, admits that it is responsible for the safety of tenants and guests on its property. JRK further admits that a wet, slick floor is a hazard, that putting non-slip matting on a laminate floor that does not absorb moisture is a safety measure, that a mat should have been present inside the subject vestibule, which was their general practice, and that it was JRK’s responsibility to ensure that the proper matting was in place to protect residents and guests. Ms. Golden testified that there was no weather matting inside the subject vestibule at the time of her fall. John DiPaolo testified that there was no matting in the vestibule from when Mr. DiPaolo complained in November or December through February 4, 2019. Within two months prior to Ms. Golden’s fall, Mr. DiPaolo contacted JRK management on two or three separate occasions, reporting that subject vestibule was dangerous, that it would become very slippery, and that someone would fall and get hurt. According to Mr. DiPaolo, JIRK did nothing in response to his reported concerns, The vestibule remained in chaos and a mess. Accordingly, JRK had actual notice of the dangerous conditions inside the vestibule. Just as Ms. Golden’s fall and injury inside the subject vestibule was foreseeable to Mr. DiPaolo, it was foreseeable to JRK. D. ‘The Facts of this Case Are Distinguishable from Wexler. In its Motion, the defendant relies on Wexler v. Stane! Memorial Cl el of Brookline. Inc., 2 Mass. App. Ct. 750 (1975), arguing that the condition that caused Ms. Golden’s fall was a “transitory condition” and, therefore, JRK cannot be held liable. However, the facts of the case at bar are distinguishable from Wexler. In Wexler, plaintiff arrived at the defendant's funeral home to attend a funeral at 1:00 P.M. Snow had been falling for an hour or two. The plaintiff entered the funeral home lobby through a covered entranceway, stepped upon a small carpet located just inside the door, took one step off the carpet, and fell. A half hour before she arrived, a small 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. Wexler v. fanets] Mein’! Ghapel.of Brookli ; 2 Mass. App. Ct. 750 (1975). The Wexler Court held that, in their view, this was “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.” Wexler v. Stanet Mem! Cl e] of Brookline, Inc. 2 Mass. App. Ct. 750, 751 (1975) (internal quotations and citation omitted), The Court noted that “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, or that it was of unusual depth or extent.” Jd. Further, the Court opined that it could, “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,” and that “there was no evidence that the floor, for any reason, became peculiarly slippery when wet.” Id. The matter at bar is simply not a case concerning a “transitory condition” from water being tracked in during a weather event. In fact, there was no active weather event. This case is about the defendant JRK’s dereliction of duty over the course of months in its failure to clean and maintain the subject vestibule. This case is about their removal of the non-slip safety matting, which could have prevented Ms. Golden’s fall. ‘ Mr. DiPalo, a resident of Residences at Tewksbury Commons, testified that the vestibule was a “mess” and “chaos.” He testified that there was about a half inch of slush on the floor and that debris, like junk mail, had been dumped on the floor. He testified that the vestibule was wet, slippery, and dangerous. Ms. Golden testified that the floor was “soaked” and that, while on the floor waiting for EMS to arrive, her clothes were “soaked.” In the matter at bar, and unlike the facts in Wexler, there is evidence that the water, slush, and debris on the floor was “more than inevitably results from the tramping of many feet in such a place” and that it was “of unusual depth or extent.” There is evidence that the water, slush, and debris was more than just “thin” or a “film,” as those terms were used in Wexler. In Wexler, there was no evidence that the floor became particularly slippery when wet. In the matter at bar, Mr. Dipaolo testified that the flooring of the subject vestibule was very slippery and dangerous. On multiple occasions in the months prior to Ms. Golden’s fall, Mr. DiPaolo contacted JRK management and notified them that the vestibule was dangerous and would become slippery. He even told them that he feared someone would fall and get hurt. In Wexler, there was no evidence that the water had been there for much more than thirty minutes. In the matter at bar, Ms. Golden testified that the wet, slushy condition looked like it had been there for a while. Further, Mr. DiPaolo, a few hours prior to Ms. Golden’s fall, observed that the vestibule was wet from slush, had debris, and was very slippery and dangerous. Lastly, in Wexler, there was no evidence that anti-slip weather matting had been removed prior to the incident. In this case, there is testimony that, before JRK took over the property, there was anti-slip weather matting in the vestibule and that JRK removed the weather matting, leaving an exposed wood laminate floor. JRK admitted that the matting “should” have been in the subject vestibule for safety reasons. JRK’s admission that the weather matting should have 10 been in the vestibule for safety reasons and the multiple complaints to management from Mr. DiPaolo about the vestibule, show that JRK had notice of the dangerous condition and that Ms. Golden’s fall was foreseeable. E. Wexler’s “Transitory Water” Doctrine has been Abolished... The defendant cites the transitory water rule set forth in Wexler'v, Stanetsky Memorial Chapel.of Brookline, Inc., 2 Mass. App. Ct. 750 (1975). However, the Wexler case was heard decades before Papadopoulos v. Target Corp., 457 Mass. 368 (2010) and Sheehan v..Roche Bros. Supermarkets. Inc:, 448 Mass. 780 (2007), both of which moved the bar and set the current standard for proof of a slip and fall premises liability case in Massachusetts. In Sheehan, the Supreme Judicial Court altered the notice requirement in premises liability cases. Sheehan involved a patron of a grocery store who slipped and fell on a grape. The lower court applied traditional principles of notice and granted summary judgment to the store because the plaintiff could not prove that the store had notice. There was no evidence that the store knew that the grape was on the floor or that the grape had been on the floor for a time long enough that the store should have known about it. Jd. at 782. Reversing and remanding, the SJC analyzed three different approaches throughout the country: the traditional approach, the mode of operation approach, and the burden shifting approach, Under the “mode of operation approach,” the plaintiff must prove that the injury was attributable to a reasonably foreseeable dangerous condition on the owner’s premises related to the store’s mode of operation. After analyzing the three approaches, the Sheehan Court held that “the mode of operation approach” was preferable. Sheehan v. Roche Bros. Supermarkets; Inc., 448 Mass. 780 (2007). “The mode of operation approach is in our view the more preferable, and we adopt it.” Id, at 788. 11 In 2015, the Supreme Judicial Court was faced with whether the “mode of operation approach,” adopted in Sheehan, applied in all premises liability cases or was limited to self service establishments. Satkisian v: Céticept Restaurants, Inc., 471 Mass. 679 (2015). Sarkisian involved a slip and fall on the dance floor of a night club due to liquid on the floor. The lower court granted summary judgment for the defendant, reasoning that the plaintiff could not prove how long the liquid had been on the dance floor. This was affirmed by the Appellate Division of the District Court and the Massachusetts Appeals Court. The SJC reversed the order of summary judgment and remanded the case to the Superior Court. In so doing, it observed that there was no basis for limiting the mode of operation approach. to self-service establishments and applied it to all premises liability cases. Jd. at 685. Applying this approach, it was foreseeable that liquid would be spilled on the floor of a dark night club with strobe lights, where patrons were allowed to drink on the dance floor while dancing. Although there was no evidence as to how long the liquid had been on the floor, that was not the appropriate inquiry; rather, foreseeability of a condition satisfies the notice requirements under the mode of operation approach in premises liability cases. Td. In Papadopoulos'v. ‘Target Corp., 457 Mass. 368 (2010), the SIC ruled that a property owner has the same duty with respect to hazards arising from ice and snow as it does from all other hazards. In Papadopoulos, the plaintiff slipped on ice that had formed near a median at the Liberty Tree Mall. A snowplow had cleared the lot and deposited a pile of snow on the median. The ice that caused the plaintiff’s fall had either fallen from the snow pile or had melted and refroze on the pavement. Either way, it was determined that the ice that caused the plaintiff’s fall was a “natural accumulation.” The lower court granted the defendant’s motion for summary judgment, the Appeals Court affirmed, and the plaintiff applied for further appellate review. 12 The Supreme Judicial Court in handling the appeal, discussed the distinction between a slip and fall on snow or ice that was an “artificial accumulation” versus a “natural accumulation.” Under the then existing rule in Massachusetts, a property owner had no duty to remove natural accumulations of snow or ice and could not be held liable for failure to do so. Jd. at 373. In other words, property owners could not be held liable for failing to mitigate hazards they did not create. However, the Papadopoulos Court abandoned the artificial versus natural accumulation distinction, holding, “We will now apply to hazards arising from ice and snow the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to act as a reasonable person under all the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk. Jd. at 383. The entry of summary judgment was reversed, and the case was remanded. The Wexler decision, upon which JRK relies in its Motion, was based on the “natural accumulation” rule, holding that the accumulation of water could not have been prevented given the conditions of weather then existing. However, the natural accumulation versus artificial accumulation rule was abandoned in Papadopoulos. See Stapleton v. Target Corp., 2011 WL 8198179 (Stems, J. C.A. No. 11-CV-10378); Robbins v. Plymouth Persy’s Place, 2013 WL 12311120 (Tauro, J. C.A. No. 12-10261) (The SJC abandoned the natural accumulation of snow and ice exception on which Wexler appears to have been based). More recently, in a December 2018 case, Judge Moriarty, sitting in Plymouth Superior Court, applied the reasoning set forth in Papadopoulos and Sheehan and implicitly held that the Wexler “transitory water doctrine” had been overruled. The issue is no longer whether the condition is natural or unnatural, but whether it is foreseeable that such a condition would exist, 13 and whether the defendant used due care in protecting the plaintiff against its dangers. Holden v. Wal-mart Stores East, LP, 2018 WL 7048233 (2018). In light of the Sheehan and Sarkisian Courts’ adoption of the “mode of operation approach,” the holding in Papadopoulos abolishing the natural versus unnatural accumulation distinction and applying the reasonable person standard, and the more recent cases abandoning the “transitory water doctrine” of Wexler, upon which the defendant relies, the defendant’s Motion for Summary Judgment must be denied. Iv. CONCLUSION There is ample evidence in this case to establish that the defendant, JRK, failed to take reasonable measures to mitigate the hazardous and unreasonably dangerous condition of the subject vestibule, which caused Ms. Golden’s injury. There is evidence that JRK removed the anti- slip weather matting inside the vestibule prior to her fall. There is evidence that there was no weather matting in the vestibule on February 4, 2019, the date of her fall. There is evidence that the subject vestibule was a mess and wet with slush and debris on the date of her fall, which had been there for hours. There is evidence that the flooring of the subject vestibule became slippery when wet. There is evidence that JRK was notified on multiple occasions prior to Ms. Golden’s fall that the subject vestibule was dangerous and slippery. For the reasons above and based on the law in this Commonwealth, the Defendants Motion for Summary Judgment should be denied. 14 Respectfully submitted, The Plaintiff, "Wl Douglas J. Henderson BBO# 683562 Kiley Law Group, LLC 342 North Main Street Andover, MA 01810 P: (978) 474-8670 F: (978) 474-8946 dhenderson@tomkileylaw.com aQ/a3fp0o.f Date 15