In a recent decision, Bowers v. P. Wile’s, Inc., No. SJC-11923 (July 28, 2016), the Massachusetts SJC issued an opinion reflecting a further evolution of the mode of operation doctrine. This doctrine is a shift from traditional premises liability law in Massachusetts, which required notice as a key component in determining whether a property owner or operator could be found liable for a plaintiff’s slip and fall. Under the traditional view, a plaintiff was required to prove that the defendant either knew of a defective condition on its premises or that such condition was present on the premises long enough that the defendant should have been on notice of the condition. See Oliveri v. Mass. Bay Transp. Auth., 363 Mass. 165 (1973).
In 2007, the SJC adopted the mode of operation doctrine in the case Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007). According to this doctrine, a plaintiff is relieved of his or her burden to establish notice of a dangerous condition by proving that the injury was attributable to a reasonably foreseeable dangerous condition which was related to the property owner or operator’s self-service business protocol. The plaintiff in Sheehan was a customer at a grocery store who was injured when he slipped on a grape while shopping. An important consideration to the Sheehan Court was the modern day shift from clerk-assisted grocery shopping to self-service operations, because in a self-service store, customers may engage in spillage or breakage as they access items and they “may not be as careful and vigilant as a store owner” in keeping items off the floor. Thus, the Sheehan opinion focused upon accidents caused by customers within the store as they accessed items for sale, which were dropped on the ground and resulted in other customers slipping and falling.
During the intervening years since the SJC’s ruling in Sheehan, Massachusetts courts applying the mode of operation doctrine held that the doctrine generally applied in “spillage and breakage” cases. This analysis focused on the manner in which a business owner’s items for sale could be dropped or broken by a customer and then subsequently involved in another customer’s accident. Courts ruled that application of the doctrine was justified in such instances because store owners could be negligent in connection with products which were previously handled by store employees through the clerk-assisted shopping model of the past but were now being handled directly by customers.
In Bowers, the plaintiff was injured when she slipped on a small stone that had been kicked onto a walkway outside the defendant’s store. The defendant store had placed such stones on the ground in an area where landscaping merchandise was displayed for sale. Customers utilized the walkway to access the displayed landscaping merchandise. The stones were not an items for sale, but rather were simply used to cover the ground as opposed to grass, dirt, or some other material.
The Middlesex County Superior Court granted summary judgment for the defendant store and held that the mode of operation doctrine did not apply. The Massachusetts Appeals Court reversed the decision and the SJC accepted the case for further appellate review. In its ruling, the SJC departed from prior precedent and held that the mode of operation doctrine applied, even though the item giving rise to the plaintiff’s accident was not an item for sale by the defendant store. In applying the doctrine, the SJC ruled that “where the manner of operation of a business creates a reasonably foreseeable risk of a hazardous condition, the approach permits a plaintiff to recover for injuries resulting from such conditions if the plaintiff establishes that the business did not take all ‘adequate steps’ reasonably necessary under the circumstances to protect patrons against that risk.” Bowers at *4, citing Sheehan, 448 Mass. at 790. The SJC remanded the case to the Superior Court, as questions of fact remained regarding whether the defendant store took adequate steps to ensure the safety of its customers with regard to the stones near the walkway giving rise to the plaintiff’s accident.
Although the Bowers decision may affect the scope of what types of cases will fall within the doctrine of mode of operations, it is important to note that the SCJ also held that application of the doctrine does not necessarily mean that an owner or operator of land is necessarily liable for a slip and fall accident. The SJC in Bowers reiterated the long-standing law in Massachusetts that property owners and operators are not absolute insurers of their premises. The Bowers Court noted that a “plaintiff still must establish that the steps the defendant took to protect customers from the condition that resulted in the injury were unreasonable in the circumstances.” Id. at *4. Thus, a defending property owner or operator can avoid a finding of liability by showing that it took reasonable steps in maintaining in premises.
Further, the SJC in Bowers held that a plaintiff must “establish a particular mode of operation that makes the hazardous condition foreseeable, and a recurring feature of the mode of operation, rather than one where the risk only conceivably could arise from the mode of operation.” Id. (citations omitted). As such, a property owner or operator can successfully defend such claims where the plaintiff cannot identify a particular aspect of the business model which made a hazardous condition foreseeable. A property owner or operator can also successfully defend such claims if the plaintiff cannot identify a recurring aspect of the business model giving rise or a hazardous condition. Accordingly, these issues provide a strong defense to claims for which the mode of operations doctrine is deemed to apply.