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Dec 2016

The Supreme Judicial Court recently expanded the facts pursuant to which the “mode of operation” approach to commercial premises liability cases is applied. See Bowers v. P. Wile's, Inc., 475 Mass. 34 (2016).

Traditionally in Massachusetts, a plaintiff has been required to show either actual or constructive notice of a tripping hazard before liability could attach to a commercial storeowner. For example, if there was no evidence that the storeowner had an opportunity to remedy the hazard – which usually consists of some evidence of how long the hazardous condition was present – then the storeowner could not be held liable for an injury caused by that condition. Under the “mode of operation” approach, however, if the plaintiff can show that the hazard was created as a result of the “mode” pursuant to which the storeowner chose to operate his or her business, the notice requirement is no longer the focus of the liability analysis. For example, if the hazardous item is a grape that fell from a self-service bin in a grocery store, the plaintiff need not present evidence of exactly how long the grape had been on the floor to satisfy the notice requirement. Instead, since the storeowner chose a mode of operation whereby customers reach into self-service bins to purchase grapes, and it is foreseeable that grapes will fall to the floor, the question is no longer whether the storeowner knew or should have known of the presence of the specific injury-causing grape. Rather the question is whether the storeowner, having chosen a “mode of operation” that entailed a foreseeable hazard to customers, exercised reasonable care to address the foreseeable risk of grapes falling onto the floor and becoming a hazard to customers.

The SJC first recognized the mode of operation approach in Sheehan v. Roche Bros. Supermarkets, 448 Mass. 780 (2007), and emphasized that the storeowner chose to provide items for self-service as one of the rationales for the adoption of the mode of operation approach. The court expanded the application of the mode of operation approach in a subsequent case, Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679 (2015), where self-service was not at issue. In Sarkisian, the injured party slipped on spillage from a beverage on a dance floor. The SJC held in Sarkisian that the proprietor’s mode of operating included allowing patrons to carry beverages onto a crowded, darkened dance floor, where the dance floor was the only pathway pursuant to which patrons could access a lounge area.

In the most recent case addressing the mode of operation approach, Bowers v. P. Wile's, Inc., 475 Mass. 34 (2016), the SJC consideredwhether the presence of a small river stone on a customer walkway that had migrated to the walkway from an adjacent display area and caused a plaintiff to trip and fall, triggered the application of the mode of operation approach (thereby obviating the need for plaintiff to show evidence of how long the particular stone had been present in the pathway). The SJC held that the proprietor’s mode of operating included having items for sale in a walk-in display area the surface of which consisted of these small river stones, where that display area was located immediately adjacent to a customer pathway. Thus the proprietor was on constructive notice of the risk that river stones could migrate into the pathway creating a tripping hazard – even where there was no evidence of how the river stone at issue (which was only three-quarters of an inch in size) made its way into the walking path or how long it had been there prior to the happening of the plaintiff’s accident. The SJC held that the mode of operation approach did apply to this fact pattern.

In each of these three cases discussing the mode of operation, the SJC has made a point of noting that there are limitations to the extent to which the mode of operation approach applies to commercial premises liability cases. Otherwise, the doctrine would essentially nullify the traditional approach to such cases (i.e., requiring proof that a storeowner was on notice -- actual or constructive -- of a particular dangerous condition before liability could attach.) Future cases with different fact patterns will test the extent to which the mode of operations approach applies. Importantly, the mode of operation approach only effects the element of notice. For a proprietor to be liable, the plaintiff must still show that the proprietor acted unreasonably under the circumstances with respect to the particular risk created by his mode of operation.

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