Sweet v. Cieslak

Francis Sweet v. Angelo J. Cieslak

Sweet v. Cieslak, 499 N.E.2d 1218 (Mass. App. Ct. 1986)

Court: Massachusetts Appeals Court · State Appellate Courts
Decided: November 12, 1986
Citations: 499 N.E.2d 121823 Mass. App. Ct. 9081986 Mass. App. LEXIS 1867

Cited by 8 2 descriptions by later courts

Opinion of the Court

Text extracted by OCR from a scanned original; check the original for exact wording.

1. As this case has now been tried to conclusion, there is no longer any occasion to consider the propriety of the order denying the defendant’s motion for summary judgment. Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986). 2. A careful review of all the evidence (and in particular the plaintiff’s testimony as to the wet, icy conditions which he observed inside the self-service bay of the car wash facility long before he ultimately lost his footing) compels the conclusion that the defendant should have had a directed verdict in the Superior Court because he was under no duty to warn one such as the plaintiff of the open and obvious danger of attempting to wash a car in near zero weather. See, e.g., McGuire v. Valley Arena, Inc., 299 Mass. 351, 352 (1938); Flynn v. *909 Cities Serv. Ref. Co., 306 Mass. 302, 302-303 (1940); O’Hanley v. Nor-wood, 315 Mass. 440, 440-442 (1944); LeBlanc v. Atlantic Bldg. & Supply Co., 323 Mass. 702, 704-705 (1949); Letiecq v. Denholm & McKay Co., 328 Mass. 120, 122-123 (1951); Lookner v. New York, N.H. & H. R.R., 333 Mass. 555, 556-557 (1956); Vance v. Wayside Inn, Inc., 335 Mass. 617, 619 (1957); Valunas v. J. J. Newberry Co., 336 Mass. 305, 305-306 (1957); Del Sesto v. Condakes, 341 Mass. 146, 147 (1960); Kay v. Berry, 356 Mass. 717 (1969). Compare Polak v. Whitney, 21 Mass. App. Ct. 349, 353 (1985); Bohenko v. Grzyb, 21 Mass. App. Ct. 961, 962 (1986). Contrast Marston v. Auto Laundries, Inc., 356 Mass. 743 (1970). 3. There is nothing in Mounsey v. Ellard, 363 Mass. 693, 707-709 (1973), or in Upham v. Chateau de Ville Dinner Theatre, Inc., 380 Mass. 350, 353, 355-356 (1980), which casts doubt on the continued vitality of the rules explicated and adhered to in the cases cited above. Indeed, it is clear from the face of the opinion in the Mounsey case that the court did not enlarge the duty of an owner or occupier of real estate except to the extent that it abolished the distinction between licensees and invitees. 363 Mass. 708 n.9. In the Upham case the court went no further than to abrogate the rule that a defendant’s adherence to a relevant industry standard constituted conclusive proof of no negligence on his part. 380 Mass, at 353-354. No such question was presented in this case. 4. We are not persuaded that the concluding (“unless”) clause of the Restatement (Second) of Torts § 343A (1) (1965) reflects the law of this Commonwealth. But see Ferris v. Monsanto Co., 380 Mass. 694 , 704 n.8 (1980); Nolan, Tort Law § 241, at 383-384 & n.12 (1979). If that clause does state the law of the Commonwealth, it does not apply in the circumstances of this case.

Arthur Goldstein for the defendant. John A. Mizhir for the plaintiff.

Judgment reversed.

Judgment for the defendant.

How later courts describe this case

Explanatory parentheticals written by citing courts — 2 in all; the most informative distinct ones are shown.

(owner of car wash was under no duty to warn customer of open and obvious danger of attempting to wash car in near zero temperatures where customer observed wet, icy conditions inside self-service bay before losing his footing)

O'Sullivan v. Shaw, 9 Mass. L. Rptr. 124 (1998)

Cited by 8 cases

View all citing references →

Relies on it most ⓘ

Tisdale v. Leominster Donuts, Inc.23 Mass. L. Rptr. 292 (2007)
O'Sullivan v. Shaw726 N.E.2d 951 (Mass. 2000)
Callahan v. Boston Edison Co.509 N.E.2d 1208 (Mass. App. Ct. 1987)
Bevins v. Arledge, Unpublished Decision (12-22-2003)2003 Ohio 7297 (2003)
Hall v. Waltham Post No. 156, American Legion Housing Corp.1998 Mass. App. Div. 276 (1998)
Rainka v. Kon Shing2000 Mass. App. Div. 186 (2000)

Most recent

Tisdale v. Leominster Donuts, Inc.23 Mass. L. Rptr. 292 (2007)
Bevins v. Arledge, Unpublished Decision (12-22-2003)2003 Ohio 7297 (2003)
Rainka v. Kon Shing2000 Mass. App. Div. 186 (2000)
O'Sullivan v. Shaw726 N.E.2d 951 (Mass. 2000)
Brazao v. Hinn10 Mass. L. Rptr. 301 (1999)
Hall v. Waltham Post No. 156, American Legion Housing Corp.1998 Mass. App. Div. 276 (1998)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 17

Depth	Case	Cited by
	Mounsey v. Ellard, 297 N.E.2d 43 (Mass. 1973)	284
	Upham v. Chateau De Ville Dinner Theatre, Inc., 403 N.E.2d 350 (Mass. 1980)	24
	Deerskin Trading Post, Inc. v. Spencer Press, Inc., 495 N.E.2d 303 (Mass. 1986)	101
	LeBlanc v. Atl. Bldg. & Supply Co., 84 N.E.2d 10 (Mass. 1949)	47
	Polak v. Whitney, 487 N.E.2d 213 (Mass. App. Ct. 1985)	32
	Letiecq v. Denholm & McKay Co., 102 N.E.2d 86 (Mass. 1951)	29
	McGuire v. Valley Arena Inc., 12 N.E.2d 808 (Mass. 1938)	24
	Valunas v. JJ Newberry Co., 145 N.E.2d 685 (Mass. 1957)	21
	O'Hanley v. Norwood, 53 N.E.2d 3 (Mass. 1944)	21
	Flynn v. Cities Serv. Ref. Co., 28 N.E.2d 453 (Mass. 1940)	18
	Lookner v. N.Y., New Haven & Hartford R.R., 132 N.E.2d 160 (Mass. 1956)	8
	Vance v. Wayside Inn, Inc., 141 N.E.2d 365 (Mass. 1957)	6
	Ferris v. Monsanto Co., 405 N.E.2d 644 (Mass. 1980)	6
	Del Sesto v. Condakes, 167 N.E.2d 635 (Mass. 1960)	5
	Bohenko v. Grzyb, 488 N.E.2d 804 (Mass. App. Ct. 1986)	4
	Marston v. Auto Laundries, Inc., 255 N.E.2d 730 (Mass. 1970)	3
	Kay v. Berry, 248 N.E.2d 654 (Mass. 1969)	1

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