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Luisi v. Foodmaster Supermarkets12/14/2000
Suffolk.
September 13, 2000.
Negligence, Grocery store, Foreseeability of harm, Duty to prevent harm, Proximate cause. Landlord and Tenant, Landlord's liability to third person.
Civil action commenced in the Superior Court Department on May 23, 1996.
The case was heard by Nonnie S. Burnes, J., on motions for summary judgment.
While shopping at the Foodmaster Supermarket in the Bunker Hill Mall in the Charlestown section of Boston in the middle of the afternoon, the plaintiff was repeatedly stabbed without warning or provocation by Diane Huggins. Huggins was indicted for mayhem, armed assault with intent to murder, and assault and battery with a dangerous weapon upon the plaintiff. She was subsequently found not criminally responsible by reason of mental illness by a Superior Court judge in a jury-waived trial.
The plaintiff brought this action in the Superior Court against Foodmaster Supermarkets, Inc. (Foodmaster), and its landlord, New England Development, Inc. (NED), alleging that Foodmaster and NED were negligent in failing to provide adequate security to protect their patrons and in displaying knives without protective covers for sale. Both defendants filed motions for summary judgment. A Superior Court judge allowed the motions on the grounds that Huggins's unprovoked attack upon the plaintiff was neither reasonably foreseeable nor preventable by Foodmaster and NED. The plaintiff appeals arguing that Huggins's unprovoked attack on the plaintiff was both a reasonably foreseeable risk of the defendants' failure to provide adequate security and a foreseeable consequence of Foodmaster's negligence in displaying knives without protective covers for sale. We affirm the judgment in favor of NED and affirm partial summary judgment in favor of Foodmaster based on the claim of inadequate security, but reverse that portion of the judgment in favor of Foodmaster based on the store's alleged negligence in displaying uncovered knives for sale.
We first address the plaintiff's argument that reasonable security measures would have prevented the attack. Although NED employed a security guard to patrol the mall's parking lot and common areas between 4:00 P.M. and 11:00 P.M., there is no dispute that, at the time of the attack, neither Foodmaster nor NED had a security guard, uniformed or otherwise, on duty. The plaintiff argues that the presence of a security guard was warranted based on the incidence of crimes at the mall and the supermarket and that a security guard would have deterred the attack. There is no question that a possessor of land open to the public for business owes a duty to all persons lawfully on its premises "to use reasonable care to prevent injury to [them] by third persons whether their acts are accidental, negligent, or intentional." Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 452 (1969). Flood v. Southland Corp., 416 Mass. 62, 72 (1993). However, a possessor of land is not a guarantor of the safety of persons lawfully on its premises. The duty owed is limited to guarding against reasonably foreseeable risks of harm. Flood v. Southland Corp., 416 Mass. at 72-73. In deciding on the foreseeability of the risk of injury, all the circumstances are examined. Id. at 72. Ordinarily, this is a question of fact for the jury, but there are some instances where a judge may determine that, in the circumstances presented, the harm that befell the plaintiff was not reasonably foreseeable or preventable. Glick v. Prince Italian Foods of Saugus, Inc., 25 Mass. App. Ct. 901, 902-903 (1987).
Here the plaintiff, in opposition to the defendants' motions, submitted affidavits of two Foodmaster employees stat
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