A recent Superior Court decision may signal an expansion of an important theory by which a slip and fall plaintiff can hold a commercial property owner liable for damages. The Court in Mills v. American Multi-Cinema, Inc., applied the “mode of operation” theory to hold the defendant cinema owner liable to a patron who, while walking in a darkened theater, slipped on food which had accumulated on the floor and was injured. Application of the mode of operation theory to a non-supermarket defendant offers slip and fall plaintiffs an important new weapon.
The traditional premises liability rule.
Under traditional premises liability rules, where a foreign substance causes a plaintiff invitee’s slip and fall, the plaintiff can establish negligence on the part of the business owner in one of three ways: (1) by proving that the defendant caused the substance to be there (2) by proving that the defendant had actual knowledge of the existence of the foreign substance; or (3) by proving that the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it. If, under (2) or (3), above, the owner knows or should know of the dangerous condition, then the plaintiff must also show that the owner should have expected that invitees would not discover the danger or protect themselves from it, and that the owner failed to exercise reasonable care to protect invitees from the danger.
The Sheehan decision.
In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007), the Supreme Judicial Court adopted the so-called “mode of operation” approach, which focuses on whether the nature of the defendant’s business gives rise to a substantial risk of injury to customers. Under this approach, where a store owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner can be held liable for injuries to a customer if the customer proves that the owner failed to take all reasonable precautions necessary to protect customers from these foreseeable dangerous conditions.
The Sheehan Court held that the defendant supermarket’s use of a self-service mode of operation (in which customers select their items from the shelves rather than being waited on by store personnel) created the foreseeable risk that products would end up on the floor, posing a danger to customers who might be distracted by the store’s attractive displays of products. The plaintiff in Sheehan had slipped on a grape which had fallen to the floor in the self-service produce section of the store.
According to the Sheehan Court, the mode of operation approach does not eliminate the requirement that the store owner knows or should know of the presence of the foreign substance on the floor prior to the accident. However, notice is presumed where the owner knows or should know that its very method of operation is likely to cause such dangers. The plaintiff is relieved of the burden of proving notice by, for example, showing how long the foreign substance has been on the floor. The plaintiff is still required to show that the accident was caused by a foreign substance or other dangerous condition and that the store failed to take reasonable measures, commensurate with the dangers of self-service, to make the store safe for patrons. The plaintiff must also show that the dangerous condition was caused by the self-service mode of operation and not by other causes (e.g. a fall caused by a newly waxed floor).
Expanded application of the mode of operation theory.
Although the mode of operation approach could, theoretically, apply whenever a defendant’s method of doing business poses foreseeable dangers to customers, until recently, the courts have applied it only in cases where defendant businesses were self-service establishments similar to supermarkets.
In Sarkisian v. Concept Restaurants, Inc., 2012 WL 5337230 (Mass. App. Div. October 19, 2012), the Massachusetts Appellate Division referred to a possible expansion of the mode of operation doctrine in future cases. The Sarkisian Court held the doctrine inapplicable because the establishment in question (a night club where drinks were served by a bar tender) was not self-service. However, the Court noted that the doctrine may, in the future, be expanded to cover situations in which, despite the lack of self-service, the owner’s mode of operation creates a foreseeable risk of injury.
In Mills, the Superior Court (Cornetta, J.), applied the mode of operation theory to a movie theater, a non-self-service defendant. The plaintiff had arrived at the theater late for the movie she intended to see. Having obtained tickets, she entered the darkened theater while the movie was showing. After walking about six feet into the theater, the plaintiff slipped and fell forward, striking her shoulder on a metal railing and sustaining injuries.
The Superior Court held that the unique condition in a darkened movie theater warranted application of the mode of operation doctrine instead of traditional rules:
A theater (or cinema) is a unique venue. Of necessity, it is a dimly lit or darkened space when a performance is being shown. Often, (as in this case) there are food and beverage concessions owned and operated by the theater offering invitees to purchase food and beverages and to take them into the darkened auditorium where the performance is playing.
Persons entering this unique venue are often unable to observe the conditions of floors, aisles, and seats which may harbor hazards to unsuspecting patrons….
It is because of this unique environment that the traditional approach to premises liability is inadequate to the task of providing reasonable safety conditions….
Thus, the Mills Court limited its application of the mode of operation doctrine to the particular circumstances of the case before it, involving a darkened commercial premises made dangerous by the owner’s provision of food and beverages to patrons. The Court even noted that traditional premises liability rules might apply to fully illuminated areas in the theater lobby.
Nevertheless, Mills represents an expansion of the mode of operation doctrine to a non-self-service defendant. It appears to be a step toward the expansion predicted in Sarkisian. Certainly, Mills supports application of the mode of operation doctrine whenever the defendant method of doing business both creates foreseeable dangers and makes it difficult for patrons to protect themselves.