Since the Massachusetts Supreme Judicial Court decided Sheehan v. Roche Brothers Supermarkets in 2007, Massachusetts trial courts have generally rejected plaintiffs’ efforts to expand the holding of the case.
Before Sheehan, a plaintiff in Massachusetts was required to prove the defendant either (a) caused the defective condition to be present, (b) actually knew the defective condition was present, or (c) the defective condition was present for so long that the defendant should have been aware of the condition. Oliveri v. Mass. Bay Transp. Auth., 363 Mass. 165 (1973). In Sheehan, the court held that “the adoption of the mode of operation approach will not modify the general rule governing premises liability requiring a plaintiff to prove that an owner had either actual or constructive notice of an unsafe condition on the premises. However, if a plaintiff proves that an unsafe condition on an owner's premises exists that was reasonably foreseeable, resulting from an owner's self-service business or mode of operation, and the plaintiff slips as a result of the unsafe condition, the plaintiff will satisfy the notice requirement.” Sheehan v. Roche Brothers Supermarkets, Inc., 448 Mass. 780, 791 (2007). In cases where the court decides to apply the doctrine, the task for the jury includes determining “whether the owner could reasonably foresee or anticipate that the dangerous condition regularly occurs” and “whether the owner took all necessary reasonable precautions commensurate with the risks inherent in a self-service method of operation to protect individuals from such foreseeable risks.” Assuming the criteria of the decision were met, Sheehan significantly lightened the plaintiff’s burden at the summary judgment stage, and provided an easier jury framework at trial.
Since Sheehan, plaintiffs have tried to expand the decision in various ways. One approach has been to overlook the requirement of showing a defective condition. Courts have declined, however, to apply the doctrine in the absence of proper evidence that a defective condition existed. In Pedula v. Stop & Shop, (Mass. Superior Court, January 5, 2010), Melick & Porter obtained summary judgment for the defendant in a case involving a moveable upright advertising sign. The elderly plaintiff was reaching for a carton of milk in the dairy case. The sign was in front of the case, and allegedly blocked the milk. The plaintiff fell and was injured when she leaned on the sign while trying to reach around it, and they both collapsed to the floor. In opposing summary judgment, the plaintiff asserted that the injury arose out of Stop & Shop’s mode of operation. The court rejected plaintiff’s argument. As there was no evidence the sign was defective, it could not be considered a “reasonably foreseeable dangerous condition”, as required by Sheehan. The judge declined to apply a mode of operation analysis, and allowed summary judgment.
Similarly, in Gomez v. Stop & Shop, 670 F. 3d 395 (1st Cir. 2012), the plaintiff felt a strange sensation, as though unable to lift his foot, while walking through the greeting card aisle. He lost his balance and fell to the floor. His wife noticed skid marks close by, but neither she nor anyone else witnessed the incident, observed anything wrong with the floor, or saw any foreign substance. The court held the evidence was insufficient to establish that a defective condition existed, rendering a mode of operation analysis inapplicable.
Massachusetts courts have also rejected efforts to apply the doctrine where the defendant was not, in fact, a self-service operation. In Felt Enterprises Inc. v. Chau Chow II, Inc., (Mass. Superior Court, 2011), the court declined to apply a mode of operations approach to a claim that the defendant overserved alcohol to the underlying claimant. The court observed that the defendant was not a self-service operation, but a bar where patrons had to request alcoholic beverages and be served by wait staff. The court noted that Massachusetts decisions have consistently refused to extend the “mode of operations” approach to slip-and-fall cases in which the defendant was not a self-service establishment. See, Frank v. Westwood Associates, Inc., (Mass.Superior Court 2008) (mode of operations test did not apply to premises liability case occurring in condominium complex); Pittsley v. Saunstar Land Co., LLC, (Mass.App.Ct.2007) (mode of operations test did not apply to premises liability case occurring during hotel construction; Sheehan narrowly applies to self-service retail defendants only); Phoung Luc v. Wyndham Management Corp., 496 F.3d 85, 87 (1st Cir.2007) (mode of operation approach not applicable to dram shop liability cases and could not be used to establish that defendant had notice of patron's intoxication while continuing to serve him alcohol).
Other decisions since Sheehan reflect that the doctrine will not be applied unless the plaintiff shows the required connection between the accident and the self service mode of operation. In Tavernese v. Shaw's Supermarkets, Inc., 72 Mass. App. Ct. 1107 (2008) (unpublished), review denied, 452 Mass. 1105 (2008), a shopper slipped and fell on slush which had been tracked into the entrance vestibule of a supermarket. The Appeals Court affirmed summary judgment, and held that the mode of operation approach did not apply, because the allegedly dangerous condition in the entrance vestibule was a transitory condition unrelated to the supermarket's self-service mode of operation. “(N)egligence … cannot be found where transitory conditions due to normal use in wet weather, according to ordinary experience could not in reason have been prevented.” Similarly, in Gurvich v. Stop & Shop Cos., (Mass. Superior Ct. 2009), a shopper slipped and fell on a wet floor at the front of the store on a rainy day. The court declined to apply the mode of operation approach, noting that "because the record does not suggest that [the supermarket's] mode of operation created an obvious, or even foreseeable, risk of injury, there is no genuine issue of material fact as to whether [it] was on notice of the dangerous condition." In Smart v. Demoulas Supermarkets, Inc., 2008 Mass. App. Div. 105, a shopper slipped and fell in a puddle of water in the supermarket's frozen foods department. The Appellate Division concluded that the mode of operation approach did not apply, holding that "the puddle of water, if indeed it was the cause of [the shopper's] fall, cannot be connected to customers' careless handling of produce, or containers (or condensation from the coffin case). No issue of display, or marketing of store product, or indeed anything having to do with [the supermarket's] mode of operation, is present." In LaColla v. Stop & Shop, (Mass. Superior Court 2008), a customer slipped and fell on a shiny section of an supermarket aisle. The Superior Court declined to apply a mode of operation analysis, because the condition of the floor was unrelated to the supermarket's self-service operation.
The Sheehan case lightens the plaintiff’s burden of proof in certain premises liability cases. Plaintiffs have since tried to expand the scope of the decision. Massachusetts courts have generally declined to do so. Instead, consistent with Sheehan, a plaintiff must first establish that the defendant was a self service business, that a defect existed, and that the defect was attributable to the self-service mode of operation, before the doctrine will be applied.