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Luisi v. Foodmaster Supermarkets12/14/2000
oston police officers who were present in the parking lot of the mall at the time of the attack entered the store, the plaintiff dropped her knife. However, even though Huggins eventually surrendered to the police officers, the record indicates that Huggins did not initially respond to police requests to drop the knife, but continued to strike out with it. We therefore conclude that, in light of Huggins's proffered mental condition, the absence of any evidence indicating that her behavior before the attack gave any warning signals to the defendants and their agents of any potential threat to the safety of their customers, cf. Flood v. Southland Corp., 416 Mass. at 73, and the absence of any evidence that the presence of a security officer, uniformed or otherwise, would have posed a deterrent to her attack, cf. Sharpe v. Peter Pan Bus Lines, Inc., 401 Mass. at 793-794, no reasonable preventive measures taken by the defendants could have prevented the sudden and unprovoked attack on the plaintiff. Summary judgment was appropriately entered in favor of both defendants based upon the plaintiff's claim of inadequate security.
We also add that a further ground exists for exempting NED from liability under this theory. We note that NED was a commercial landlord. As such, NED had "a duty to take reasonable precautions to protect persons lawfully in common areas of rental property against reasonably foreseeable risks" (emphasis supplied). Whittaker v. Saraceno, 418 Mass. at 198. Here, the plaintiff's injuries did not occur in a common area but within the premises leased to Foodmaster. Absent any evidence that NED was required by the terms of its lease with Foodmaster to provide security to it or that the area in which the harmful act occurred was under its control, NED could not be held liable for the plaintiff's injuries. Id. at 198 & n.2.
The plaintiff also argues that her injuries were within the foreseeable risk of harm resulting from the display of knives without protective covers in the Foodmaster store. Whether the knife used by Huggins to attack the plaintiff came from this display or whether there was any such display is disputed by the parties. However, the existence of this disputed fact does not necessarily preclude the allowance of summary judgment if, as the defendants argue, the unprovoked attack by Huggins on the plaintiff was not within the foreseeable risk of harm arising from a display of uncovered knives. See Hogan v. Riemer, 35 Mass. App. Ct. 360, 364 (1993). The defendants argue that the injury reasonably anticipated from a display of knives without protective covers is that a customer might cut himself on one of the knives in examining it. While this may be so, it is equally plausible, given the history of the incidence of crimes at the mall and within the store itself, that Foodmaster should have foreseen that a display of knives without protective covers created a dangerous situation affording the opportunity for a third person to commit the type of crime or tort that occurred in this case. Bellows v. Worcester Storage Co., 297 Mass. 188, 195 (1937). When the harm should have been foreseen, " he way in which the stabbing occurred and the fact that the plaintiff might be the one to be harmed need not have been reasonably foreseeable." Flood v. Southland Corp., 416 Mass. at 73. See Carey v. New Yorker of Worcester, Inc., 355 Mass. at 452, 454; Lawrence v. Kamco, Inc., 8 Mass. App. Ct. 854, 858 (1979); Pollard v. Powers, 50 Mass. App. Ct. 515, 519 (2000).
Based on the materials presented to the motion judge, we therefore conclude that there is a reasonable difference of opinion as to the foreseeability of the risk of harm posed by the defendant Foodmaster's display of u
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