Bates-Bridgmon v. Heong's Mkt., Inc.

152 A.3d 1137

Deborah BATES–BRIDGMON et al.

v.HEONG'S MARKET, INC. d/b/a Roch's Market et al.

No. 2015–214–Appeal

KC 12–23

Supreme Court of Rhode Island.

January 24, 2017

Ronald J. Resmini, Esq., Adam J. Resmini, Esq., for Plaintiffs.

Dennis J. Roberts, II, Esquire, for Defendants.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Indeglia, for the Court.

The plaintiffs, Deborah Bates–Bridgmon and her husband, Jackie Bridgmon (Deborah, Jackie, or plaintiffs), appeal following a Superior Court judgment in favor of the defendant, Heong's Market, Inc., d/b/a Roch's Market (Roch's Market or defendant).¹

This appeal arises from Deborah's fall at Roch's Market in West Warwick. The plaintiffs subsequently brought suit against defendant for the injuries Deborah sustained from her fall. After a trial in the Kent County Superior Court, a jury rendered a verdict for defendant. Following the unfavorable verdict, plaintiffs moved for a new trial and additur, pursuant to Rule 59 of the Superior Court Rules of Civil Procedure. After hearing the parties, the trial justice denied the motion, concluding that he would not have reached a different result from that reached by the jury.

On April 13, 2015, plaintiffs appealed and argued that the trial justice erred by denying their motion for a new trial and not instructing the jury on the "mode of operation" theory. Alternatively, plaintiffs ask this Court to adopt that theory for "the adjudication of premises liability claims brought by business invitees seeking compensation for injuries arising out of a business owner's self-service mode of operation." For the reasons set forth, we affirm the judgment of the Superior Court.

IFacts and Travel

The event underlying this appeal is Deborah's fall that occurred on March 23, 2009, at Roch's Market. On January 9, 2012, plaintiffs filed a complaint alleging that defendant negligently maintained the market's premises; that defendant breached a contractual duty owed to Deborah, a business invitee, by failing to maintain the property in a reasonable and safe manner; and that Jackie suffered a loss of consortium. On October 6, 2014, plaintiffs moved to amend their complaint so as to add an additional count based on the theory of mode of operation.² This motion was granted on November 3, 2014. With respect to this theory, plaintiffs alleged that "by its mode of operation, [defendant] is responsible for such negligence and foreseen conditions on its premises." A trial was held from February 24 through February 26, 2015.

Deborah testified first. She stated that, on March 23, 2009, between 2:00 p.m. and 3:30 p.m., she entered Roch's Market, a grocery store she frequented, to purchase meat. After leaving the meat department, Deborah turned a corner, took a few steps, and slipped on what she later discovered was "cucumber and oil and debris" from the nearby salad bar. When asked whether she saw a warning sign near the salad bar, Deborah responded, "No." She testified that she yelled for help to an employee "a few feet" away from her, but was not acknowledged because that person was assisting another customer. When asked whether there were any other employees in the area, Deborah replied, "No, other than people behind, like, the meat counter and the deli counter." Deborah said that she then crawled to the prepared foods department and used a rail to lift herself up. She eventually got the aforementioned employee's attention and told her that she fell and needed help. Deborah said that the employee offered assistance and wiped the floor. She testified that the manager of the meat department came over and spoke with her. Deborah said that he told her that there was no one available, at that time, to complete an incident report.

Deborah said that she experienced pain "[i]mmediately after the fall" because she landed in a contorted position. She testified that she had discomfort in her lower back, right upper back, right arm, right side, knee, ankle, and foot. The next morning, after a poor night's sleep, Deborah went to the emergency room. There, x-rays were taken that revealed no fractures. Deborah testified that she was told she had soft-tissue injuries. MRIs taken later, however, revealed that she had bulging and degenerative disks and multiple tears in her meniscus.

Deborah noted that she was collecting disability benefits from the state for fibromyalgia, anxiety, depression, and circulatory issues. She distinguished the pain from her fall from the fibromyalgia pain, stating, "It's a constant pain or like an ache or a throb. It's different from fibromyalgia, that sharp twitchy electrical current pain." She testified that she had experienced the pain from her fall daily.

Her husband, Jackie, testified next. He described his wife's health before her fall as "good" and stated that they were able to do everything that they wanted to do. Jackie testified that, prior to Deborah's fall, he required her help because of his own health issues. Discussing the effect that Deborah's injuries had on their life, Jackie said, "[O]ur life's just done. We do nothing." He testified that, after his wife's fall, he called Roch's Market and spoke with the meat-department manager. He recounted the incident and told the manager that Deborah was taken to the emergency room. Jackie testified that he wanted to fill out an incident report; however, the manager whom he spoke with told him to call an attorney.

Next, Ting Chan, the owner of Roch's Market, testified.³ She said that she purchased the market in January 2008. Chan testified that she was not at the store on the day of Deborah's fall, however, the "general manager," Carl R. Masiello, told her that a customer fell. She noted that, at that time, they did not have the customer's name or any other information about her. She said that Deborah had not filed an incident report. She testified that Masiello, whom she described as a reliable and credible employee, never told her whether the customer was injured and also did not mention Jackie's phone call. When asked about Jackie's testimony that a Roch's Market manager told him to call an attorney, Chan testified that "I don't think any of our employee[s] would say things like that. Any kind of call like this, it will be directed to the manager or to me * * *." Chan described Roch's Market's policy for accidents involving customers. She said that a manager would fill out an injury report based on the customer's responses, so that Roch's Market would have the customer's name, contact information, and a description of what happened.

Chan testified that there was no salad bar in Roch's Market when she purchased the store. It was installed in mid- to late 2008 and was continuously used in that capacity until the end of 2010 or the beginning of 2011. Chan said that, although the structure still remained, self-serve salad items were no longer available. Instead, it contained wrapped sandwiches. Chan testified that Roch's Market stopped selling salad at the salad bar because it was not sufficiently profitable. When asked whether Deborah's injury influenced this decision, Chan replied, "It just didn't generate enough business for us." Chan was also asked if any changes had been made to the area near the salad bar after Deborah's incident, to which she replied, "No." She testified that Roch's Market did not put mats around the salad bar area because that would be a hazard as customers could trip on them.

The testimony of Masiello was introduced.⁴ He said that he was working the day of Deborah's incident; however, he did not speak with her himself. Masiello testified that he verbally reported the incident to his superior. He said that he knew that Deborah sustained injuries from her fall, but he did not know the nature of her injuries. He also confirmed that there was "something on the floor."

Masiello was asked whether spills occurred often at the salad bar, to which he replied, "Not to my knowledge, no, I wouldn't say so." He did state, however, that he occasionally saw spills at the salad bar. When questioned about the policies of Roch's Market concerning the salad bar, Masiello stated that there was not a particular employee assigned to monitor customers at that site. He noted, however, that the deli employees could view it from their station to see if it needed tending to, and a chef at Roch's Market periodically checked the salad bar to ensure that it was full. When asked whether there were mats or other protective materials near the salad bar to absorb possible spills, Masiello replied in the negative. He was also asked whether there were any warnings cautioning customers to be careful of spills and to notify a Roch's Market employee in case of a spill, to which he again replied in the negative.

Both parties then rested, and defendant moved under Rule 50 of the Superior Court Rules of Civil Procedure for a judgment as a matter of law. The defendant argued that, although it was undisputed that Deborah fell on oil and cucumber, "[t]here's no evidence there was actual notice to the store or anybody employed by the store * * * concerning the presence of something on the floor." The defendant also asserted that there was no evidence to support the conclusion that a Roch's Market employee had constructive notice of the spill, giving defendant a reasonable opportunity to clean it up before Deborah fell.

The plaintiffs also moved for a judgment as a matter of law. On the issue of notice, they argued that the "salad bar is equivalent to a leaky drainpipe where * * * it's a constant danger." They noted that Roch's Market lacked policies with respect to maintaining safety near the salad bar, and argued that "[t]he defect is already in existence in the nature of the product and the business in which they're selling it." They further contended that "even without mode of operation, without breach of contract, without any of those theories[,] * * * [t]here is still under...