Recently, Massachusetts appellate courts have expanded the “mode of operation” exception to the standard notice requirement in premises liability cases. Both decisions expressly rejected certain limitations heretofore thought applicable to the approach. Specifically, inSarkisian v. Concept Restaurants, Inc., 471 Mass. 679 (2015), the Supreme Judicial Court held that the approach is not limited strictly to businesses who employ a “self-service” mode of operation. And in Bowers v. P Wile’s, Inc., 87 Mass.App.Ct. 362 (2015), the Massachusetts Appeals Court held that the approach is not limited strictly to situations where the dangerous condition is created by items offered for sale on the premises. Together, these two decisions expand the scope of potential liability for business owners in premises liability cases.
The mode of operation approach was first adopted by the SJC in Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007) and is a modern variation on traditional premises liability analysis. Under the traditional rule, a plaintiff bringing a slip and fall case against a business owner is required to prove: (1) that the owner had actual or constructive notice of the dangerous condition which caused the injury, (2) that the plaintiff would not have been in a position to discover the dangerous condition and/or protect against it, and (3) that the defendant failed to exercise reasonable care to guard against the danger.
Under the traditional approach, a plaintiff could satisfy the notice requirement by proving any of the following: that the defendant caused the foreign substance, matter, or item to be on the floor; that the defendant had actual knowledge of its presence; or that it had been on the floor so long that the defendant should have been aware of the condition. This burden of proof was often difficult to carry because, as Sheehan points out, customers are generally not in a position to determine the precise origins of a dangerous condition or how long it had been present on the premises. As a result, the Sheehan court adopted the “mode of operation” approach, which allows a plaintiff to satisfy the notice element by showing that the injury was attributable to a reasonably foreseeable dangerous condition related to the owner’s chosen mode of operation.
After Sheehan, the mode of operation approach was thought to be limited only to situations where the dangerous condition was created by a “self-service” mode of operation. Sheehan was a case in which the plaintiff slipped on a grape which had fallen in a supermarket aisle from a self-service produce display. As such, the Sheehan court discussed the mode of operation approach almost exclusively in terms of self-service businesses. So too did courts relying on Sheehan. For example, the Massachusetts Appeals Court articulated the rationale for the mode of operation approach by stating that “in circumstances where store owners invite customers to use self-service to manipulate merchandise displays, there is a foreseeable risk that customers’ handling of merchandise or displays will cause disruption of the store’s arranged display, to the end that the hazardous conditions will result.” Bowers, 87 Mass.App.Ct. 362, 30 N.E.3d 847, 852 (2015) (citing Sheehan, 448 Mass. at 784-786) (emphasis added). Although such interpretations of the mode of operation approach treated “self-service” as an integral element, the SJC in Sarkisian made it explicitly clear that the approach applies outside the self-service context, as well.
In Sarkisian, the plaintiff slipped and fell on the dance floor of a nightclub, breaking her leg. Located directly on the dance floor were two bars which served drinks to customers in plastic cups with no lids. The dance floor area was dimly lit, accompanied by loud music, with strobe lights flashing overhead. In granting the defendant’s motion for summary judgment, the trial court found that the mode of operation approach did not apply, because the nightclub did not employ a self-service mode of operation—customers did not help themselves to drinks but were served. On appeal, the SJC found the lack of self-service immaterial, and saw no justification for this distinction from either tort principles or Sheehan itself. The SJC stated that it was “making explicit what was implicit in Sheehan, namely, that so long as the … parameters for applying the mode of operation approach exist, there is no basis for limiting its application to self-service establishments.” Sarkisian, 471 Mass. at 684-685 (2015).
The Massachusetts Appeals Court decision in Bowers also expanded the application of the mode of operation approach, but in a different way. The Bowers trial court, in granting the defendant’s motion for summary judgment, noted that the mode of operation approach had previously only been utilized in cases where the dangerous condition was caused by the spillage or breakage of an item offered for sale—the grape, for example, in Sheehan. In Bowers, the plaintiff tripped and fell on a river stone which had been kicked onto the sidewalk from a gravel area where sales items were displayed outside the defendant’s store. On appeal, the Massachusetts Appeals Court found that this distinction between the grape and the river rock—between an item that is offered for sale and one that is not—was immaterial. In so finding, the Appeals Court made it clear that the item causing the injury is not required to be an item offered for sale in order for the mode of operation approach to apply. The Appeals Court stated that “the distinction drawn by the motion judge between items offered for sale and other hazards foreseeably occurring as a result of the store’s use of a self-service mode of operation should make no difference in the applicability of the mode of operation approach.” Bowers, 87 Mass.App.Ct. 362, 30 N.E.3d 847, 852 (2015).
Even in light of the SJC’s expansion of the mode of operation approach in Sarkisian (which was decided shortly after Bowers), the Appeals Court’s ruling in Bowers appears somewhat questionable, given that the hazard which caused the plaintiff’s fall bore little or no relation to the store’s mode of operation. The Bowers case has been accepted for further appellate review by the SJC, and may be subject to modification or reversal in the next few months.
Although the appellate courts’ relaxation of the perceived limitations on the application of the mode of operation approach means that it can now be utilized in a greater number of cases, some limits do remain. First, Sheehan itself places a limit on the approach with the requirement that the risk of danger associated with the mode of operation be reasonably foreseeable. In this regard, the SJC in Sarkisian repeatedly noted the list of factors (a crowded dancefloor, cups with no lids, dim lighting, loud music, and strobe lights) which made spilled drinks a reasonably foreseeable hazard associated with the nightclub’s mode of operation. In a less obvious case, the argument that the dangerous condition was not reasonably foreseeable is available to premises owners.
Second, it should be noted that the application of the approach does not necessarily impose liability on premises owners. Rather, it is simply an avenue to satisfy the traditional notice requirement, which is only the first element that the plaintiff must prove. The plaintiff will still be required to then prove the remaining elements: that the defendant did not act reasonably in protecting against the danger and that the plaintiff’s injuries occurred as a result.
If you have any questions about these recent decisions and how they affect your business, please do not hesitate to contact us.