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Mode of Operation Approach in Massachusetts

In 2007, the Massachusetts Supreme Judicial Court made it easier for plaintiffs to prove slip-and-fall claims against supermarkets by adopting the "mode of operation" approach.  Massachusetts business owners (and their insurers) should be encouraged that since then, the Appeals Court and Superior Court largely have resisted plaintiffs' efforts to expand this doctrine to other types of businesses.

The traditional theory of premises liability gave storeowners a reasonable chance to find (and clean up) any dangerous substances on their floors.  To recover under this theory, a plaintiff needed to prove that the storeowner (1) put the dangerous substance on the floor, (2) knew the dangerous substance was on the floor ("actual notice"), or (3) should have known the dangerous substance was on the floor, because it was there for a long time ("constructive notice").  These things were difficult to prove, since a customer usually had no idea how long something had been on the floor.

The Supreme Judicial Court changed this rule in 2007.  In Sheehan v. Roche Brothers Supermarkets, Inc., the plaintiff slipped and fell on a grape in a supermarket.  The trial court allowed the supermarket's summary judgment motion because the plaintiff could not prove how long the grape had been on the floor or how it got there.  The Supreme Judicial Court reversed, and relieved the plaintiff of proving that the supermarket had actual or constructive notice of the grape.  The Court reasoned that the supermarket had a "self-service business or mode of operation" -- allowing shoppers to pick out their own produce -- and should have known this would tend to leave slippery produce on the floor.

Since Sheehan, plaintiffs have argued the mode of operation approach should apply to all types of businesses.  For the most part, the Appeals Court and Superior Court have rejected these arguments, concluding that the mode of operation approach does not apply to movie theaters, condominiums, office buildings, or construction sites.  These decisions have been based on two grounds.  First, Sheehan was unique because it involved a self-service produce section in a supermarket.  Second, if the Supreme Judicial Court intended to expand the mode of operation approach beyond supermarkets, it could have done so. 

One open question is whether the mode of operation approach applies to bars and restaurants.  In 2009, a Superior Court judge decided that it did, because the nightclub left strands of beads on each table and knew that customers would pick them up, possibly dropping some of the beads.  In April 2011, though, a different Superior Court judge concluded that the mode of operation approach did not apply to a nightclub that was sued for the acts of an intoxicated patron.  Since the nightclub employed bartenders to serve alcohol, the judge ruled that it was unlike the self-service supermarket in Sheehan.  Although we think it is doubtful that the mode of operation approach should apply to bars and restaurants, we are waiting for an appellate decision to clarify this issue.

Please contact us if you have any questions on how the mode of operation approach affects your business.

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