Transitory water doctrine no longer good law, judge decides.

Byline: Eric T. Berkman

A recently issued Superior Court decision has called into question the "transitory water" doctrine that has long shielded premises owners from liability in slip-and-fall cases.

Under the doctrine, established by the Appeals Court's 1975 decision in Wexler v. Stanetsky Memorial Chapel of Brookline, Inc., business owners and operators are not responsible for injuries attributable to "transitory conditions" of premises caused by "normal use in wet weather."

In the Superior Court case, plaintiff Maria Holden sought to hold the Wal-Mart chain accountable for injuries she suffered when she slipped and fell on water that had collected on the tiled floor of the entryway to its Hanover store. The water apparently had been tracked in by other customers on a rainy day.

Wal-Mart argued that the transitory water doctrine, also known as the "transitory conditions" doctrine, barred Holden's claim.

But Judge Cornelius J. Moriarty II disagreed.

Specifically, Moriarty found that given the reasoning of the Supreme Judicial Court in its 2010 Papadopoulos v. Target Corp. decision, the transitory water doctrine could no longer be considered good law. The SJC in Papadopoulos had eliminated the "natural accumulation rule" that protected property owners from accountability for injuries caused by untouched ice and snow on their premises.

"[In Papadopoulos,] the court held '[i]f a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger,'" Moriarty wrote, quoting the SJC.

"Whether Wal-Mart made reasonable efforts to protect the plaintiff against the danger is for the jury to determine," Moriarty continued, denying Wal-Mart's motion for summary judgment.

The three-page decision isHolden v. Wal-Mart Stores East, LP, Lawyers Weekly No. 12-044-18. The full text of the ruling can be found here.

Outdated doctrine?

Plaintiff's counsel Donald L. Gibson of Marshfield applauded Moriarty's ruling.

"It's my firm belief, shared by other members of the plaintiffs' bar, that the transitory water rule set forth in Wexler is no longer good law in view of the ruling by the SJC in Papadopoulos," he said "Even though the SJC in Papadopoulos was dealing with the natural versus unnatural accumulation of snow and...