A recent decision of the Massachusetts Appeals Court arguably expands the “mode of operation” approach, a theory by which a slip and fall plaintiff can hold a commercial property owner liable for damages. In Bowers v. P. Wile’s, Inc., 87 Mass. App. Ct. 362, 30 N.E.3d 847 (2015), the Court clarified that application of the mode of operation approach is not limited to cases where the dangerous condition causing the plaintiff’s accident resulted from breakage or spillage of items the defendant store is offering for sale.
The traditional premises liability rule.
Under traditional premises liability rules, where a foreign substance causes a plaintiff invitee’s slip and fall accident, 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).
The mode of operation approach could, theoretically, apply whenever a defendant’s method of doing business poses foreseeable dangers to customers. Indeed, the Sheehan Court made clear that the rationale supporting the mode of operation approach “was based on the foreseeable likelihood that hazards could result from the owner’s self-service mode of operation, and that such ‘ conditions may include, but are not limited to, spilled foreign substances or fallen matter.’” Bowers, 30 N.E.3d at 851, quoting Sheehan, 448 Mass. at 786 n.6. Nevertheless, until recently, the courts have applied the mode of operation approach only in cases where defendant businesses were self-service establishments similar to supermarkets and the hazard was caused by the breakage or spillage of items which the defendant store was offering for sale.
The Bowers decision.
The plaintiff in Bowers was a customer who fell after stepping on a small river stone which was on the sidewalk after it had been moved from an adjacent gravel area maintained by the defendant store. The sidewalk ran parallel to the store front and the gravel area was a strip, also parallel to the store front and located between the store and the sidewalk. Between the gravel area and the front wall of the store was a porch area. There was evidence that the store displayed merchandise on the porch and in the gravel area, and allowed customers to help themselves to products from those areas. In other words, the store operated on a self-service basis in those areas.
It was a common occurrence for stones from the gravel area to be moved, by customer foot traffic or other causes, from the gravel area to the sidewalk. Store personnel were aware of this fact and, when outside the store for other reasons, would look for stones on the sidewalk and kick them back onto the gravel area. However, the store had no formal schedule for inspections of the sidewalk.
The trial court judge granted the store’s motion for summary judgment, “based on his view that the mode of operation approach applies only where the dangerous condition results from breakage or spillage of items offered for sale.” Bowers, 30 N.E.3d at 848. However, the Appeals Court reversed, holding that the mode of operation approach is not so limited in its application. The Court explained,
We acknowledge that Sheehan, supra at 781, 863 N.E.2d 1276, itself, involved an injury caused by an item (a grape) that apparently fell from a self-service display to the supermarket floor before a customer slipped on it. However, under the rationale supporting the mode of operation approach, it should not matter whether the item that migrates from the self-service display to the floor (thereby causing a slipping hazard) is a grape or a quantity of shaved ice from the bed keeping the grapes cool. The distinction drawn by the motion judge between items offered for sale and other hazards foreseeably occurring as a result of the store’s use of a self-service mode of operation accordingly should make no difference in the applicability of the mode of operation approach. Moreover, as we have observed, the Supreme Judicial Court explicitly cautioned that its adoption of the mode of operation was not limited to “spilled foreign substances or fallen matter.” Sheehan, 448 Mass. at 786 n. 6, 863 N.E.2d 1276.
Returning to the facts of the instant case, … it is undisputed that the gravel area, the source of the stone causing the plaintiff’s injury, was a self-service area used for the display and sale of store merchandise, including large items, the manipulation of which foreseeably could (and often did) cause stones to move onto the sidewalk, creating a risk of tripping or falling. In our view, it is accordingly an appropriate circumstance for application of the mode of operation approach.
Bowers, 30 N.E.3d 847 at 852-53.
Having concluded that the mode of operation approach applied, the Appeals Court noted that there remained a factual dispute as to whether, in light of the risks posed by its mode of operation, the store had failed to take reasonable steps to prevent the accident that occurred. It therefore reversed the summary judgment for the store and sent the case back to the trial court.
The Bowers decision expands the reach of the mode of operation approach. By making clear that the dangerous condition leading to a plaintiff’s injury may be any condition foreseeably occurring as a result of the store’s use of a self-service mode of operation, and is not limited to the presence of store merchandise on the floor, the Bowers decision makes it easier for more plaintiffs to recover compensation.