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In Massachusetts, “negligence” is defined as a legal duty and a failure to act or omission in violation of that duty results in negligence.  Royal Indem. Co. v. Pittsfield Elec. Co., 293 Mass. 4, 6 (1935); and M.G.L. Ch. 283, §85.  For an action in negligence to lie, a causal connection must be established between a defendant’s negligence and a plaintiff’s injury or damage. Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 742 (1978); Baggs v. Hirschfield, 293 Mass. 1, 3 (1935); Sullivan v. Old Colony St. Ry., 200 Mass. 303, 307-308 (1908). See also Jupin v. Kask, 447 Mass. 141 (2006).

commerce-acts-books-477966-mA recent case reported in Illinois illustrates an analysis of whether or not a duty arises. Roh v. Starbucks Corp No. 16-4033 (7th Cir. 2018).  In 2013 parents, Marcus and Beebe Roh visited a Starbucks store with their 3 year old and five year old sons.  The Starbucks store had commissioned custom free-standing stanchions connected by ropes to direct the flow of customer foot traffic.  The stanchions were not affixed to the floor but were made with heavy concrete bases.  During the Roh’s visit one of the stanchions was knocked to the ground injuring one of their children’s hands.

The injury required the child’s left middle finger to be surgically amputated and a pin to be inserted into another finger.

The Rohs did not see what precipitated the stanchion falling but it was established that the boys had been playing on the rope and stanchions, immediately before the incident.

The mother of the boys sued Starbucks on behalf of her child alleging that Starbucks was negligent by: failing to safely maintain its premises, to adequately secure the stanchion, to properly inspect it to ensure its stability, to warn patrons of the potential danger posed by the stanchion, or to realize that minor patrons would not appreciate the risk posed by the unsecured stanchion.

The court entered judgment in favor of Starbucks. The Court found that any duty Starbucks may have owed the child was abrogated by his parents’ presence with him in Starbucks at the time of the accident. The boys were playing on the rope and stanchions and the parents had the duty to protect their kids from the obvious danger posed by playing on the unsecured stanchions, even if the parents were unable to foresee the specific injury that resulted.

In determining that Starbucks owed no duty to the Rohs in this case, the court was unpersuaded by the Rohs suggestion that the potentially dangerous nature of the clearly visible stanchions was somehow hidden from them.   The court stated, “…it is a matter of common sense that serious injury could result from climbing on the stanchions and swinging from the ropes connecting them together. Beebe essentially argues that they could not have foreseen the particular injury that Marcus suffered. But no such specificity is required.”

In Illinois, the determination of whether a duty exists in a given case is a question of law to be determined by the court. The court considers four factors: “(1) the foreseeability of the injury; (2) the likelihood of the injury; (3) the difficulty of guarding against it; and (4) the consequences of putting the burden to guard against it on the defendant.” Ward, 554 N.E.2d at 226–27; Harlin v. Sears Roebuck & Co., 860 N.E.2d 479, 484 (Ill. App. Ct. 2006).

In Massachusetts the test of duty is usually 3 prongs: “We generally consider the latter three questions — whether a defendant exercised reasonable care, the extent of the damage caused, and whether the defendant’s breach and the damage were causally related” Mullins v. Pine Manor College, 389 Mass. 47, 57-58 (1983) (Pine Manor). However, the existence of a duty is a question of law, not one of fact for the jury and is thus an appropriate subject of summary judgment. See, e.g., Remy v. MacDonald, 440 Mass. 675, 677 (2004) (“If no such duty exists, a claim of negligence cannot be brought”).”

Not all businesses and retail premises are liable for every injury that may happen on their property.  The facts and circumstances of each case are to be evaluated and the appropriate law applied.  Roh is one illustration of a court’s analysis of negligence and duty to patrons in premises liability cases.  Now, it’s time for my morning cup of coffee.

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