October Blog Picture

In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788 (2007) and Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 783 (2015), the Massachusetts Supreme Judicial Court had adopted the “mode of operation” approach to premises liability claims.  Specifically, this approach “developed as a means of addressing cases in which an entity’s manner of operating its business makes the regular occurrence of dangerous conditions caused by customer action reasonably foreseeable, but where an injured customer often would be unable to obtain relief for an injury stemming from such foreseeable conditions under traditional premises liability, which requires ‘notice of the specific dangerous condition itself and not .  . . general notice of conditions producing the dangerous condition.”  Bowers v. P. Wile’s, Inc., 475 Mass. 34, 39 (2016).  Below, we shall consider the Bowers decision and several more recent unpublished decisions by Massachusetts courts which have considered claims by plaintiffs who have relied on both the traditional and “mode of operation” theories in an attempt to hold a business liable for falls occurring on their premises.

Bowers v. P. Wile's, Inc., 475 Mass. 34 (2016)

The Plaintiff was injured when she fell on a stone which had migrated onto a concrete walkway from a store’s gravel area, where landscaping materials were on display. To find a retail store liable for a plaintiff's injuries incurred as a result of a dangerous condition on the premises not caused or created by the store, a jury must find that the store (1) knew of, or, by exercise of reasonable care would have discovered, the dangerous condition; (2) the condition created an unreasonable risk of harm; (3) the store could not have expected the plaintiff to discover or protect herself against the potential harm; and (4) the store failed to exercise reasonable care to protect the plaintiff.

Under the traditional legal approach to such premises liability claims, the Plaintiff would have been required to prove that the Defendant had actual or constructive notice of this potentially dangerous condition.  To prove actual notice, the Plaintiff would have to establish that the Defendant either placed the stone on the walkway or knew it was there before the Plaintiff fell.  Constructive notice is established based on the length of time that the dangerous condition existed, and thus the Defendant should have discovered it during that time.  In Bowers, the Plaintiff could not offer any proof of either actual or constructive notice.

Instead, the Plaintiff relied on a “mode of operation” theory.  By this approach, a plaintiff injured as a result of a slip and fall is relieved of her burden of proving that the defendant had actual or constructive notice of the dangerous condition or to prove the exact failure that caused the accident.  Rather, the “notice” requirement is established if the plaintiff can prove that the injury was attributable to a reasonably foreseeable dangerous condition on the owner’s premises that is related to how the defendant’s store is operated.   

Where the manner of operation of a business creates a reasonably foreseeable risk of a hazardous condition, the mode of operation approach permits a plaintiff to recover for injuries resulting from such conditions if the plaintiff establishes that the business did not take all adequate steps reasonably necessary under the circumstances to protect patrons against that risk.

To “limit” the reach of this principle, the Court required “a plaintiff to establish a ‘particular’ mode of operation that makes the hazardous condition foreseeable, and a ‘recurring feature of the mode of operation,” rather than one where the risk only ‘conceivably’ could arise from the mode of operation.”  In addition, even if the plaintiff can establish notice of a dangerous condition through the defendant’s mode of operation, she cannot prevail unless she also establishes that the steps the defendant took to protect patrons were unreasonable in the circumstances.  

In Bowers, the “particular” mode of operation requirement was satisfied by the defendant’s decision to use stones, rather a non-mobile alternative, such as grass, next to its walkway.  The recurring nature of the risk of stones going onto the walkway was also potentially established by the testimony of the store manager, who said the walkway is checked every fifteen minutes or so when employees are assisting customers in the gravel area or performing other work in the area.   Accordingly, summary judgment in favor of the defendant was denied.

Katin v. Stop & Shop Co., Inc., 92 Mass.App.Ct. 1129 (2018) ((Rule 1:28– unpublished) 

In this case, the Plaintiff fell on a small “Wonderbread” sign inside a grocery store.  The sign had fallen from its frame, face down on the floor.  The floor and back of the sign were both white so they blended in with each other.  The Plaintiff described the sign as “very clean” with no dirt, fingerprints or tire marks.  

Applying the traditional approach, the Court found that the Defendant had not caused the sign to be on the floor and had no knowledge that it was there.  The “clean” condition of the sign suggested that it had not been on the floor for any appreciable time, and thus the Defendant was not on constructive notice of this condition.  Furthermore, the Plaintiff could not rely on “mode of operation,” because there was no proof that the condition was a recurring feature of the way the Defendant operated its store.  Accordingly, summary judgment was granted and affirmed in the Defendant’s favor.  

Amara v. Falcon Holding Corp., 90 Mass.App.Ct. 1103 (2016) (Rule 1:28—unpublished)

The Plaintiff fell while walking in a hotel bathroom, because a patron had previously sprayed furniture polish, which had been stored under the sink, mistaking it for room freshener.  The Plaintiff’s claim failed under the traditional approach, because there was no evidence that the Defendant knew of or caused the dangerous condition, or that it had existed for a sufficiently long enough time to be discovered.  Under the “mode of operation” theory, the Plaintiff’s claim failed because there was no evidence that use of the furniture polish was a recurring condition. Thus, summary judgment for the defendant was affirmed on appeal.    

Errico v. J.C. Penney Corp., Inc., 2017 WL 6045420 (D.Mass. 2017) (Unpublished)

In this case, the Plaintiff allegedly tripped on a rug as she entered a store with her daughter.  Her daughter was walking in front of the Plaintiff, and did not trip. Neither the Plaintiff nor her daughter noticed the rug as they entered the store, but claimed that it was “curled up” or “lifted” after the accident.  

As with the other cited cases, the Court considered both the “traditional” and “mode of operation” approaches.  Finding no evidence that the Defendant caused a hazardous condition or knew of it, there was no actual notice.  The Plaintiff claimed that the Defendant should have known of the condition based on constructive notice, but a surveillance video showed the Plaintiff’s daughter and another patron walking on the rug without incident.  The store’s loss-prevention manager estimated that roughly 250 people had entered the store that day before the Plaintiff without incident.  Thus, the store was not on constructive notice of a potential problem.

Likewise, placing the rug by the door and not securing it were not unreasonable acts by the Defendant and the Plaintiff offered no contrary evidence.  In fact, the Court noted that it is “commonplace” for rugs to be placed in front of doors and “one could easily imagine a case where the absence of such a rug would be considered a breach of duty.”  (Emphasis in original.)  The Court distinguished Bowers v. P. Wile's, Inc., 475 Mass. 34 (2016), on the grounds that the defendant in that case was aware of the stones going onto the walkway, resulting in a tripping hazard.  In Errico, there was no evidence of a recurring problem with the rug, and the Defendant was therefore granted summary judgment.   

Wakim v. Ambius, Inc., 91 Mass.App.Ct. 1103 (2017) (Rule 1:28—unpublished)

The Plaintiffs claim to have fallen on water as they were walking through the Northshore Mall.  They contended that the water was left by one of the Defendants, which was responsible for watering the plants at the mall.  However, the only evidence that this was the source of the water was the hearsay statement from a security guard, who was not an employee or agent of any of the Defendants.  Thus, this “admission” was not binding on any of the Defendants.

Again applying both the traditional and mode of operation approaches, the Court found that there was no admissible evidence that the Defendants caused the water to be there or that they knew it was there.  They were also not on constructive notice of the water, since there was no evidence as to how long it was present.  

The Plaintiffs’ mode of operation claim failed because there was no evidence that watering the plants resulted in water on the floor as a recurring event.  In fact, the evidence was that this had never happened before.  In addition, a mode of operation claim requires the intervention of a third party (such as a customer who drops a grape in a grocery store, spills a drink on a dance floor at a club when required to walk over that floor to get back to his or her seat, or kicks a stone onto a concrete walkway), but the contractor hired to water the plants was under the direction and control of the mall owners.  Thus, the mode of operation doctrine did not apply in these circumstances.

Conclusion: 

The Bowers decision included a dissent from Judge Cordy with which two other justices agreed.  Among the dissent’s points was that “mode of operation” cases had previously been limited to instances of “spillage and breakage” of products sold by defendants which expected their customers to carry those products around their premises (such as grapes in a grocery store).  Bowers extended the doctrine to the placement of stones, and the recurring problem of the stones being kicked onto a walkway.  However, since Bowers, Massachusetts courts have found for defendants based on the lack of the “recurring” nature of the cause of the plaintiff’s fall in the circumstances presented.  Thus, these cases are resolved on a case-by-case basis, based on (1) who caused the condition; (2) whether the defendant knew it existed; (3) how long the condition had existed; (4) whether it arose from a recurring problem; and (5) whether the defendant acted reasonably in light of the risk presented by any recurring risks arising from the operation of its business.

Please do not hesitate to contact us with any questions.   

 

Photo Credit : mysafetysign.com