Francis W. Simonoko & another vs. Stop & Shop, Inc.

Massachusetts Supreme Judicial Court1978-11-30

376 Mass. 929

Summary · law.co

Holding. The trial court's judgment dismissing the plaintiffs' negligence complaint was affirmed. The manager's statements about hook safety were properly excluded as inadmissible because there was no showing the manager was authorized to speak for the defendant company, and the defendant was entitled to judgment on the admissible evidence.

A wife was injured when she caught her nose on a display hook while reaching for merchandise on a top shelf in a Stop & Shop store. She and her husband sued for negligence. The plaintiffs attempted to introduce testimony from the store manager stating that he had previously warned the company the hooks were unsafe, but the trial judge excluded this evidence as inadmissible.

On appeal, the court affirmed the trial court's exclusion of the manager's statements. The plaintiffs argued the statements should be admitted because the manager was acting within the scope of his employment when accompanying an injured customer to the hospital. The court rejected this reasoning, finding no adequate showing that the manager had authority to make statements on behalf of the company regarding store safety matters.

Regarding the underlying negligence claim, the court determined that on the admissible evidence, the defendant was entitled to judgment. The presence of the hooks and their location in the store were not shown to be unreasonable given the nature of the retail business, and there was no evidence that displaying merchandise from such hooks constituted negligent conduct.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Admissibility of statements by store manager regarding product safety
Scope of agent's apparent authority to make statements on behalf of defendant
Negligence liability for display hooks in retail store

Procedural posture

The plaintiffs appealed from a judgment of dismissal entered on the defendant's motion for summary judgment after the trial judge ruled certain evidence inadmissible.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The plaintiffs, husband and wife, appeal from a judgment dismissing their complaint in this tort action. The judge considered the case on the defendant’s motion for summary judgment. In effect, the parties stipulated to the evidence most favorable to the plaintiffs. The wife stepped on a bottom shelf in the defendant’s store to reach a bottle at the back of a top shelf, and, as she came down, she caught her nose on a hook about five inches long. The hook, which was attachable "by a squeezing action,” was of a type used to display merchandise at the defendant’s store and at other stores, including the store in which the wife worked. There was no warning to indicate the presence of the hook. Over the defendant’s objection, the wife would have sought to testify that the store manager told her, on the way to the hospital following the accident, that he had informed the defendant company that the hooks were unsafe and very dangerous and that the store should get rid of them. The judge ruled that this evidence was inadmissible.

1. The manager’s statements were not admissible. The plaintiffs concede that the manager’s statements would be admissible only if made within the scope of his authority. They argue that taking injured customers to the hospital was "within the scope and course of the manager’s employment,” and that this fact would permit a finding that the manager was authorized to make the statements he made about the hooks. That conclusion is not warranted. On the principles which the plaintiffs grant are applicable in determining whether the manager’s statements were admissible, there is no showing of the manager’s authority to speak for the defendant. See Bristol Wholesale Grocery Co. v. Municipal Lighting Plant Comm’n of Taunton, 347 Mass. 668, 671 (1964); Sargent’s Case, 347 Mass. 250, 253 (1964); Sacks v. Martin Equip. Co., 333 Mass. 274, 279-280 (1955). Cf. Rosenston v. Bickford Shoes, Inc., 340 Mass. 769, 772-773 (1960) (statements by defendant company’s president). We note, however, that the manager’s statements were not inadmissible merely because they were opinions. See K. B. Hughes, Evidence § 515 (1961); W. B. Leach & P. J. Liacos, Massachusetts Evidence 194-195 (4th ed. 1967).

Louis Kerlinsky for the plaintiffs.

Charles W. Brids for the defendant.

2. On the admissible evidence, the defendant was entitled to a judgment in its favor. Cases in which a finding of negligence on the part of a retailer was warranted and those in which no such finding was warranted are collected in Letiecq v. Denholm & McKay Co., 328 Mass. 120, 122 (1951). For more recent cases, compare Vance v. Gould, 355 Mass. 104 (1968) (box left on floor), where a finding of negligence was warranted, with St. Rock v. Gagnon, 342 Mass. 722 (1961) (jack handle at service station), Sprague v. Great Atl. & Pac. Tea Co., 342 Mass. 711 (1961) (box of groceries coming down conveyor belt), and Mudge v. Stop & Shop, Inc., 339 Mass. 763 (1959) (stock truck in aisle), where a finding of negligence was not warranted. There was no evidence that the display ofgoods from such hooks or the presence of the hooks could be viewed as unreasonable, considering the nature of the business, and there was no showing that the location of the hooks was unreasonable.

Judgment affirmed.