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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2008-420 GEOFFREY J. RALLIS v. DEMOULAS SUPER MARKETS, INC. Argued: June 16, 2009 Opinion Issued: July 10, 2009 Shaines & McEachern, P.A., of Portsmouth (Robert A. Shaines and Laurie A. Lacoste on the brief, and Mr. Shaines orally), for the plaintiff. Getman, Stacey, Schulthess & Steere, P.A., of Bedford (John A. Curran and Edwinna C. Vanderzanden on the brief, and Mr. Curran orally), for the defendant. DALIANIS, J. The plaintiff, Geoffrey J. Rallis, appeals a jury verdict in favor of the defendant, Demoulas Super Markets, Inc., in his negligence case. He argues that the jury instructions given by the Superior Court (McHugh, J.) were erroneous. We reverse and remand. The record supports the following facts. On August 22, 2004, the plaintiff slipped and fell while shopping at the Market Basket Supermarket in Stratham. He alleged that he was walking in the produce aisle when his left

foot slipped out from under him because the floor was wet and had green beans on it. He fell on his left hip and shoulder, refracturing his left hip, which he had injured six weeks earlier. In June 2005, the plaintiff sued the defendant for negligence. Before trial, the plaintiff filed a motion in limine asking the court to give the following jury instruction: If the plaintiff proves that he suffered an injury which occurred as a result of an unsafe condition in the defendant's selfservice store and that unsafe condition was reasonably foreseeable as a result from the defendant's self-service mode of operation and the defendant failed to take reasonable steps to protect patrons from such foreseeable risk, the law imposes liability on the defendant store owner. The store owner has the burden of proving by a preponderance of the evidence that it exercised reasonable care in the maintenance of the premises under the circumstances of the case. The trial court denied the plaintiff's motion. Over the plaintiff's objection, the court ultimately instructed the jury as follows: Now, ladies and gentlemen, we're going to talk a little bit about liability of property owners and there's a general law with respect to that and a particular law, and I'm going to review both of those with you now. The general law, with respect to property owners, is as follows: All property owners are under a duty to use reasonable care under all circumstances in the maintenance and operation of their properties. The test of reasonable care is what the ordinary, prudent person would do under the same or similar circumstances. It is up to you to decide whether or not the defendant exercised reasonable care under all of the circumstances in the maintenance and operation of the property on the day in question. The character of and the circumstances surrounding the entry onto the property by the plaintiff will be relevant and important in determining whether the defendant acted with reasonable care under all the circumstances. A failure to fulfill this duty of reasonable care would amount to legal fault if it [were] a cause or substantial cause of the accident.

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The defendant, as an owner, cannot be expected to guarantee the safety of those entering the premises, nor is the defendant required to keep or maintain their property absolutely safe. In short, no liability is imposed merely because an accident occurred on the defendant's property without a showing of legal fault on the defendant's part. Now, the following is the specific law with respect to retail store owners: When a business invitee, such as the plaintiff in this case, is injured as a result of a foreign substance on the floor of the premises of the retail store, the business invitee must prove that the owner's negligence existed by establishing only one of the following three things: First, that the defendant caused the substance to be on the floor prior to the fall. That is, it was the defendant's employees, not customers, that caused the substance to be on the floor. Secondly, that the defendant had actual knowledge of the existence of the foreign substance. That is, on the specific day and time of the plaintiff's fall, the defendant knew there was a foreign substance on the floor in the area of the plaintiff, that caused him to fall. And, thirdly, that the foreign substance was on the floor for such a length of time that the defendant should have known it, in fact, existed. On appeal, the plaintiff first argues that the jury instruction the court gave was flawed because it failed to inform jurors that he could establish the defendant's negligence by showing that it knew or should have known that green beans in the produce section of its store tended to fall on the floor, thereby creating an unsafe condition for customers. The purpose of jury instructions is to identify issues of material fact, and to explain to the jury, in clear and intelligible language, the proper legal standards to be applied to factual findings in reaching a verdict. N.H. Ball Bearings v. Jackson, 158 N.H. ___, ___, 969 A.2d 351, 363 (2009). The scope and wording of jury instructions are within the sound discretion of the trial judge and are evaluated as a reasonable juror would have interpreted them. Id. at ____, 969 A.2d at 363. In reviewing the instructions, we consider the jury charge as a whole to determine whether the instructions fairly presented the

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case to the jury in such a manner that no injustice was done to the legal rights of the litigants. See id. at ___, 969 A.2d at 363. We apply a two-step analysis to determine whether to reverse a jury verdict in a civil case based upon an erroneous jury instruction. O'Donnell v. HCA Health Servs. of N.H., 152 N.H. 608, 615 (2005). First, the appealing party must show that it was a substantial error such that it could have misled the jury regarding the applicable law. Francoeur v. Piper, 146 N.H. 525, 531 (2001). Second, if we conclude that the error was a substantial one, we will reverse the jury verdict unless the opposing party shows that the error did not affect the outcome at trial; in other words, the error was harmless. Id. at 532; see Hodgdon v. Frisbie Mem. Hosp., 147 N.H. 286, 292 (2001). Having reviewed the jury charge in its entirety, we conclude that it inaccurately summarized the applicable law and could have misled the jury. We further conclude that this was a substantial error. The trial court instructed the jury that the plaintiff could establish the defendant's negligence by showing either that: (1) its employees caused the green beans to be on the floor; (2) it had actual knowledge that they were on the floor, whatever the cause; or (3) the length of time that the green beans were on the floor charged the defendant with constructive knowledge of their presence. By so limiting the circumstances under which the plaintiff could establish the defendant's constructive knowledge that there were green beans on the floor, the trial court erred. Under New Hampshire law, premises owners are governed by the test of reasonable care under all the circumstances in the maintenance and operation of their premises. See Simpson v. Wal-Mart Stores, 144 N.H. 571, 574 (1999). A premises owner owes a duty to entrants to use ordinary care to keep the premises in a reasonably safe condition, see True v. Meredith Creamery, 72 N.H. 154, 156 (1903), to warn entrants of dangerous conditions and to take reasonable precautions to protect them against foreseeable dangers arising out of the arrangements or use of the premises. Pridham v. Cash & Carry Bldg. Center, Inc., 116 N.H. 292, 294-95 (1976). Accordingly, under New Hampshire law, a premises owner is subject to liability for harm caused to entrants on the premises if the harm results either from: (1) the owner's failure to carry out his activities with reasonable care; or (2) the owner's failure to remedy or give warning of a dangerous condition of which he knows or in the exercise of reasonable care should know. Partin v. A & P Tea Co., 102 N.H. 62, 63-64 (1959); see Restatement (Second) of Torts

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