By Dr. John Miller
Around midnight on June 9, 2011, after a National Hockey League Boston Bruins game, Yvonne Grenier (hereafter referred to as the plaintiff), employed by NBC Universal as an independent contractor and stage manager, fell down approximately 10 stairs causing injuries to her knee, back, neck, and head. The plaintiff alleged that she was injured when she stepped on a piece of chewing gum which caused the fall down the flight of stairs, and subsequent injuries, at the TD Garden (Grenier v. Delaware North, 2019), home of the Boston Bruins of the National Hockey League and the National Basketball Association’s Boston Celtics. Since 1995, Delaware North has owned and operated the TD Garden (Delaware North, 2019b). Furthermore, Delaware North operates dining and beverage concessions at more than 60 sports and entertainment venues worldwide including MetLife Stadium, Wembley Stadium, Lambeau Field, Singapore Sports Hub, and Melbourne Olympic Parks (Delaware North, 2019a). Additionally, Delaware North services has been present at Super Bowls, World Series, Stanley Cup finals, and the Olympic Games (Delaware North, 2019a).
Complaint and Appeal
The complaint asserted that Delaware North and the owner of its cleaning service, DTZ Secure Services, Inc. (DTZ), were negligent in failing to inspect, clean, and maintain the stairwell where the injury occurred (Grenier v. Delaware North, 2019). The business relationship between Delaware North and DTZ was managed by a services agreement contract. Included in the service agreement contract were specifications that mandated eliminating tape, gum and other debris from areas in the arena including floors and stairwells (Grenier v. Delaware North, 2019). Thus, DTZ was required by the service agreement contract to inspect and keep the TD Garden facilities in good condition before, during, and after events. The contract also required DTZ to inform its staff personnel of any issues to be cleaned as soon as possible. An ancillary aspect to the Grenier charges included Delaware North and DTZ filing cross-claims against each other under contribution and common law identification. Additionally, Delaware North filed a claim against DTZ for contractual indemnification and breach of contract (Grenier v. Delaware North, 2019).
Initially, a Superior Court judge permitted Delaware North’s motions for summary judgment on the plaintiff’s negligence claims (Grenier v. Delaware North, 2019). Summary judgment is fitting when no indisputable issues of material fact are present, and the moving party is allowed to judgment as a matter of law (Kourouvacilis v. General Motors Corp., 1991). On appeal, the plaintiff alleged that the orders for summary judgment on the negligence claims were made in error. However, the court affirmed the judgement of the initial court.
Regarding the cross-claims between Delaware North and DTZ, the judge originally: (1) allowed DTZ’s motion for summary judgment concerning the contractual indemnification claim filed by Delaware North; (2) denied DTZ’s motion for summary judgment that dealt with common law indemnification claim brought by Delaware North; and (3) allowed Delaware North’s motion for summary judgment regarding the breach of contract claim (Grenier v. Delaware North, 2019). On appeal, the court ordered for summary judgment in favor for both (1) DTZ regarding the contractual indemnification claim filed by Delaware North and (2) Delaware North on its breach of contract claim for failure to obtain insurance (Grenier v. Delaware North, 2019). The following information will detail the primary issues as to how the court arrived at these appeal judgements.
Grenier’s Appeal Issues
Premises Liability: According to premises law, property owners are legally responsible for injuries occurring on their property if they (1) know or should know of a condition on the premises that creates an unreasonable risk of harm, (2) know or should know that invitees will not discover the condition or will fail to protect themselves from it, and (3) fail to protect invitees from the condition (Dobbs, 2000). Additionally, the Restatement (Second) of Torts (1961) states, “one entering a store, theatre, office building, or hotel is entitled to expect that his host will make far greater preparations to secure the safety of his patrons than a householder will make for his social or even his business visitors” (§ 343 comment e). In instances in which a person becomes injured due to a slip or a fall on a premises, “the first element is satisfied if the business operator caused the substance, matter, or item to be on the floor; the operator had actual knowledge of its presence; or the substance, matter, or item had been on the floor so long that the operator should have been aware of the condition” (Sheehan v. Roche Bros. Supermarkets, 2007, p. 5).
Grenier did not assert that the defendants caused the gum to be discarded on the staircase, or even that they knew it was there (Grenier v. Delaware North, 2019). Instead, she alleged that time between when the gum had been on the staircase and when it should have been discovered and removed by the defendants was unsatisfactory. However, the court in Wollerman v. Grand Union Stores (1965) stated that it would be “unjust to saddle the plaintiff with the burden of isolating the precise failure that caused an injury, particularly where a plaintiff’s injury results from a foreseeable risk of harm stemming from an owner’s mode of operation” (p. 430). Specifically, by relying on her own description, she indicated that because the gum was so discolored and compacted, yet somewhat sticky, that it had been present on the staircase long enough for the defendants to be on constructive notice of the dangerous condition (Grenier v. Delaware North, 2019). However, the court reported that without more proof the characteristics did not corroborate the length of time the gum was present in the stairwell (Grenier v. Delaware North, 2019).
Mode of Operation: Grenier also alleged that Delaware North’s mode of operation generated unreasonable risk of danger that resulted in her injuries (Grenier v. Delaware North, 2019). The mode of operation theory of premises liability is restricted “to situations where a business should reasonably anticipate that its chosen method of operation will regularly invite third-party interference resulting in the creation of unsafe conditions” (Sarkisian v. Concept Restaurants, Inc., p. 684). The court in Sheehan v. Roche Bros. Supermarkets (2007) elucidated that this theory of premises liability mandates that “a business may be liable if its chosen method of operation creates a reasonably foreseeable risk of danger and proximately causes an accident that the business did not take reasonable steps to avoid” (p. 7). However, Sheehan (2007) further reported that the adoption of the mode of operation does not hold the premises owners as being strictly liable for the falls or slips injuries incurred by others on their premises.
According to this case (i.e., Grenier v. Delaware North, 2019), a cleaning shift of the entire area, including the stairwells of the TD Garden, commenced at 11 p.m. (EST) after a Boston Bruins hockey game on June 9, 2011. Specifically, three DTZ employees were responsible for cleaning the stairwells on that night. These staff members were trained to remove discarded gum with scrapers. However, if any discarded gum could not be removed because people had stepped on it or if something had ground it into the floor, the employees were instructed to leave it, sweep, and mop the area (Grenier v. Delaware North, 2019). Subsequently, it would be subjected to Delaware North’s approval for such a special project and be removed with a steam cleaner at a later time. Furthermore, the court in this case (i.e., Grenier v. Delaware North, 2019) stated that although it is likely that patrons often throw away gum, food, beverages, and paper while attending sports contests, no evidence as supplied to indicate that Delaware North induced or emboldened fans to litter by its method of operation. As a result, the appeals court affirmed the order for summary judgment in favor of the defendants on the negligence claims (Grenier v. Delaware North, 2019).
Delaware North and DTZ Claims
Contractual Indemnity: The contract between Delaware North and DTZ included an indemnification clause which necessitated DTZ to “indemnify, defend, and hold harmless” Delaware North for any “liabilities, costs, and expenses resulting from claims and lawsuits brought against Delaware North in direct proportion to the amount of negligent performance or negligent non-performance attributed to [DTZ] under this agreement” (Grenier v. Delaware North, 2019, p. 9). Usually, the matter of a contract is one of fact except when the proof is comprised only of writings, or is uncontradicted (Situation Management Systems, Inc. v. Malouf, Inc. 2000).To establish intent, a court bears in mind the words used by the parties, the agreement taken in its entirety as well as the facts and circumstances that surround the issue (Massachusetts Mun. Wholesale Electric Co. v. Danvers, 1991). Delaware North alleged an error was made arguing under the obvious language of the agreement to which the court disagreed. Therefore, the court ordered summary judgment in favor of DTZ regarding contractual indemnification (Grenier v. Delaware North, 2019).
Breach of Contract: According to the Restatement (Second) of Contracts (1981) any breach of contract provides the damaged party the right to damages against the breaching party unless the contract is not enforceable against that party. In the cross-claim against DTZ, Delaware North alleged that DTZ breached the agreement by not securing the mandated insurance. Despite stating in the contract that DTZ must carry insurance coverage continually during the term of the agreement, DTZ acknowledged that it did not obtain the insurance indicated under the contract (Grenier v. Delaware North, 2019). Thus, the appellant court ruled that an error had occurred in the previous case and allowed Delaware North to recover defense costs associated to the breach of duty (Grenier v. Delaware North, 2019).
As noted in this article, the Grenier lawsuit included several different applications of legal issues. Prominent among these issues was the liability an organization such as Delaware North has to ensure that their properties are reasonably safe for patrons and employees. As Grenier was not successful in her initial lawsuit or subsequent appeal, it is apparent that both Delaware North and DTZ understood their responsibilities by properly identifying the potential risk of tripping on gum and mode of operation by having actions in place to remedy the situation.
Communication of risks is an intrinsic part of risk management that should be viewed as a part of the whole process of risk analysis, and not seen as an ‘add-on’ at the end. However, the fact that there were cross-claims brought forth between Delaware North and DTZ signifies the potential lack of communication. From an operational standpoint, risk management becomes useless when there is not clear communication between parties. When such a lack of risk communication exists between organizational entities, the potential exposure to harm of spectators and employees increases.
Dr. John Miller is a professor of sport management and former President of the Sport and Recreation Law Association. His research includes risk management in sport and recreation.
Delaware North. (2019a). About us. Retrieved from https://www.delawarenorth.com/about
Delaware North. (2019b). Venue management events. Retrieved from https://www.delawarenorth.com/services/venue-management
Dobbs, D.B. (2000). The law of torts. St. Paul, MN: West Group.
Kourouvacilis v. General Motors Corporation, 410 Mass. 706, 716 (1991).
Massachusetts Mun. Wholesale Elec. Co. v. Danvers, 411 Mass. 39, 45-46, 577 N.E.2d 283 (1991).
Restatement (Second) of Contracts § 346 comment a (1981).
Restatement (Second) of Torts § 343 comment e (1961).
Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 680, 32 N.E.3d 854 (2015).
Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 782-783, 863 N.E.2d 1276 (2007).
Situation Management System, Inc. v. Malouf, Inc., 430 Mass. 875, 879, 724 N.E.2d 699 (2000).
Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 430 (1966).