MA Superior Court Decision Signals Potential Application of Mode of Operation Approach to Defendants Who Are Not Self-Service Establishments
Under the “traditional” approach to premises liability, the plaintiff must identify the hazardous condition that caused her to slip; prove that it was present prior to her injury; and demonstrate that the defendant either caused the substance to be there, had actual knowledge of its existence, or had a reasonable opportunity to discover and remedy it. Oliveri v. Massachusetts Bay Transp. Auth., 363 Mass. 165, 167 (1973). In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007), the SJC adopted the “mode of operation” approach and lightened plaintiff’s burden of proof in slip and fall cases. Under the “mode of operation” approach, 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,448 Mass. at 791 (emphasis added).
Prior to Judge Cornetta’s decision, Massachusetts courts have consistently refused to extend the “mode of operation” approach to slip and fall cases in which the defendant was not a self-service establishment. See, e.g., Tavernese v. Shaw’s Supermarkets, No. 07-P-1829 (Mass.App.Ct. July 15, 2008) (unpublished Rule 1:28 decision) (not applicable to supermarket vestibule because “customers’ ability to help themselves to goods, rather than be assisted by a store employee, did not factor into the condition at issue”); Pittsley v. Saunstar Land Co., LLC, No. 06-P-1532 (Mass.App.Ct. Sept. 7, 2007) (unpublished Rule 1:28 decision) (not applicable to hotel construction site); Felt Enters., Inc. v. Chau Chow, II, Inc., Suffolk Superior Court, No. SUCV200703466 (March 7, 2011) (not applicable to restaurant with wait staff); Frank v. Westwood Assocs., Inc., Worcester Superior Court, No. 071798 (April 1, 2008) (not applicable to condominium complex); Sarkisian v. Concept Restaurants, Inc. d/b/a The Liquor Store, 2012 WL 5337230 (Mass.App.Div. Oct. 19, 2012) (not applicable to bar because patrons do not have independent access to drinks).
Judge Cornetta limited his holding to movie auditoriums because they are “unique”. He explained that movie auditoriums are “dimly lit” or darkened when a movie is playing. Food and beverage concessions are found at the movies and the patrons can take them into the theatres with them. Patrons often discard packaging, unconsumed food products, cups and the like onto the floor. Since the theatres are dark, patrons are often unable to observe the conditions of the floors. As a result, Judge Cornetta held that the “mode of operation” approach was the proper standard to be applied.
Judge Cornetta’s decision could signal a potential shift in applying the “mode of operation” approach to premises liability cases where the defendant is not a self-service establishment. If the Appeals Court reviews Judge Cornetta’s decision and affirms it, this would create a dangerous precedent for defendant property owners. For example, bars, restaurants, dance clubs and even sporting venues can be “dimly lit” or “darkened” making it difficult for patrons to see food or drinks that are oftentimes spilled on the floors. Even though they are not self-service establishments, based on Judge Cornetta’s reasoning, the “mode of operation” approach could apply to these venues as well. It would be impossible for those defendants to obtain summary judgment on the issue of notice. The focus would be on the reasonableness of the defendant’s conduct in attempting to keep the premises safe, which is a factual question for the jury to decide. With summary judgment essentially off the table, defendant property owners and their attorneys would have to revisit their approach to premises liability cases.