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Court ruling could put garden shops just a stone's throw away from lawsuits
By adamg on Thu, 07/28/2016 - 10:51am
A woman who says she slipped on a stone and broke her hip on a sidewalk at a Cape Cod garden shop will get to make her case to a jury that the store should be made to pay for her pain and suffering.
A Superior Court judge had tossed Linda Bowers's claim against Agway of Cape Cod, saying she failed to show either that the store put the stone there or knew it was there before she slipped on it - under traditional rules of "premises liability."
But in its ruling today, the state's highest court said garden shops are subject to another method for considering blame in such incidents, known as "mode of operation," in which injured people can make the claim that the stores should have known that something about the way they run their businesses could lead to injuries.
The Agway shop had a small gravel area next to the walkway to its entry on which it sold landscaping items, and from which the store knew that stones would sometimes be kicked onto the walkway - the store manager testified in a deposition that workers going outside were told to look for any stray stones on the sidewalk and kick them back into the gravel area.
The court ruled the "mode of operation" would ensure stores could not get away with neglecting safety issues. But it cautioned Bowers will still have to prove the store was negligent in her case:
If a jury were to conclude that Agway's maintenance of the gravel area was a mode of operation that created a foreseeable risk that customers would dislodge stones onto the walkway, which, according to its manager, Agway viewed as a potential tripping hazard, there would be a further question of material fact whether Agway's efforts to protect customers from the presence of stones on the walkway were reasonable in the circumstances. The jury then would have to determine whether Agway's policy of informal but periodic inspection of the walkway by employees, approximately every fifteen minutes, was a reasonable means by which to protect customers from the risk created by the migrating stones.
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Comments
You'd think the courts would
You'd think the courts would be against clogging themselves with rent seeking nuisance lawsuits by ambulance chasers.
But then again this is MA where the system loves bankrupting small local businesses every chance it gets.
Nuts
Even if employees sweep the pebbles in the gravel area, a customer could immediately walk in the area and put some back on the sidewalk. I doubt the store would hire a Designated Pebble Sweeper. The customer should've been more cognizant of the surroundings. This is as frivolous as suing the heiress to the O'Henry fortune.
oh, FFS
It's a garden center. There will be pebbles. There will be dirt. There will be thorns and scratchy branches. There might be even be poison ivy.
If you can't handle the Garden Center, stay out of the Garden Center.
The lawsuit is ridiculous.
The lawsuit is ridiculous.
But then, the lady broke her hip. That's hard, and expensive, and painful, and requires a ton of ongoing care.
I really wonder if we'd have so many obvious ploys for money - any money, for whatever reason they can think up - in the form of lawsuits if our health care was cheaper and easier and more accessible.
Notice that the woman isn't asking
for medical costs, just for "pain and suffering". Want to reduce frivolous lawsuits? Begin by disallowing subjective claims such as "pain and suffering ".
If you sue for medical costs,
If you sue for medical costs, you have to have proof of the costs. AKA existing costs.
If she's going to be in PT for a few years she may not know how much it's all going to cost yet. Or if she'll need to be on pain management drugs and what those'll cost and for how long. AKA future costs.
It sounds to me as if this
It sounds to me as if this woman should have been using a walker or a wheelchair if she had trouble stepping over gravel which is typical at a garden center. She should definitely keep that in mind next time she visits a beach or a walking path in the woods or an hisotrical area with cobblestones. If I trip over a tree root in a park, I'm not going to sue the city... if I had trouble walking then I would take care to avoid such areas. It's just common sense.
Many neurological disorders
Many neurological disorders cause poor balance and an unsteady gait, but would hardly necessitate a walker or wheelchair.
I'm not saying she's right to sue, but I don't think it's her fault she fell. The body is unpredictable, accidents happen.
Finally...
...somebody doing something to keep Garden Centers in this Commonwealth safe!
This lawsuit should not even
This lawsuit should not even be entertained. Hope the store wins and the lady loses all that money in lawyer fees
That's not how it works
If she loses, the lawyer takes the loss.
Depends on how the fees are paid
If the lawyer's fees are dependent on winning the case then that may be true. But if the legal fees are based on an hourly basis then the client looses if the case is lost. Even if the attorney's fee is based on a win there is stil the filing fee, out of pockets expenses, time, etc.
I agree though that slipping on a stone in a garden center is a far fetched reach for a law suit. Comparable to suing a restaurant for serving a hot steak (not coffee).
What sounds to be most important is whether the garden center took reasonable care to keep the sidewalks clear. Sweeping at 15 minute intervals - assuming that is true - sounds reasonable. Plus there is the issue of comparative negligence. Even if the garden center is found to be responsible for some negligence there is still the care that the individual must exercise.
There has been plenty of controversy concerning so-called frivolous law suits. But the reality is that law suits are not easy cash. There are plenty of barriers to being able to prove that someone suing should win their case.
While the reality may be that
lawsuits are not easy cash, far too many people still think otherwise. And far too many lawyers are too willing to take on such frivolous cases.
Pardon the pun, but we really need to find a way to raise the bar in terms of requirements to file lawsuits, so we can discourage this type of nonsense.