Gennaro Roberto v. Cuisine De Asia, Inc., Mass. App. (2021)

Officially released on March 17, 2021

Plaintiff recovered damages at a jury trial after she fell down an unmarked step in the dining room of the Defendant restaurant. Plaintiff argued that the Defendant failed to warn the Plaintiff about the step and that the Defendant failed to maintain the restaurant in a safe condition given the level change in the middle of the restaurant.

The Court noted that most of the Defendant’s argument on appeal was premised on the assumption that the Plaintiff proceeded solely on a failure to warn theory. The Court noted that an “Open and Obvious” defense is a complete defense to a failure to warn claim. However, even where a Defendant is relieved of its duty to warn it still may have a duty to remedy. As such, a plaintiff may still proceed on theories other than failure to warn, such as negligent design or failure to maintain the premises.

The Court determined that the Defendant did not properly raise issues with the jury instructions or special verdict slip at trial and therefore they were waived.

The Court next determined that based on the evidence the jury could have found that the step was not an open and obvious danger and that the Defendant did not adequately warn patrons of the danger. Alternatively, the jury could have found that the step was an open and obvious danger, but that the Defendant had a duty to remedy the step because it was likely to cause harm.

The Defendant also argued that the judge improperly denied its summary judgment motion. The Court determined that the denial of a motion for summary judgment cannot be reviewed on appeal after a trial on the merits.

Finally, the Court held that there was no basis for awarding attorney fees to the Plaintiff.

The judgment was affirmed.

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