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In accidents on premises, the doctrine as put forth in Oliveri v. MBTA, 363 Mass. 165 (1973) has controlled. It has meant that slip and fall cases involving a foreign substance, whether in a supermarket or otherwise, typically require facts to come within at least one of three categories in order to demonstrate defendant’s lack of reasonable care: 1) defendant created or had actual knowledge of condition, 2) proximity of defendant’s employees to dangerous condition, or 3) evidence of organic matter, such as deterioration, that might indicate amount of time that condition was present. There has been some talk that a more recent case, Sheehan v. Roche Brothers, 448 Mass. 780 (2007) has modified the strictures of Oliveri, although, frankly, I think it is dangerous to overemphasize the scope of the Sheehan doctrine.
Our firm has had significant success with supermarket cases and in other cases involving the liability of a landowner or one in control of premises. It is true that a necessary component for a favorable result involves proving some knowledge (actual or constructive) on the part of the defendant’s employees and a failure to remedy in a satisfactory way the hazardous condition. Usually, however, discovery reveals that there was some actual knowledge on some employee’s part and there was a failure to correct the situation so that no one would be injured. Obviously, there is no guarantee of success but I have been struck by how depositions have yielded the very information that is needed to prove negligence under the criteria set out above.
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