Christopher R. Vaccaro

Businesses owe customers a duty of reasonable care to prevent them from being injured by others, but even the best-run restaurants and stores cannot avoid occasional spills by careless customers. These spills can cause slip and fall accidents and serious injury. In recent years, Massachusetts courts have made it easier for injured customers (and personal injury lawyers) to win their lawsuits against businesses, whether or not the businesses should have known about the spill before the accident occurred.

Traditionally, to win premises liability lawsuits involving negligence, plaintiffs are required to prove that: the defendant business knew or should have known about the dangerous condition; the condition created an unreasonable risk of harm; customers could not be expected to discover or protect themselves from the condition; and the business failed to exercise reasonable care to protect customers from danger.

If the dangerous condition is spilled food or liquid, the first requirement is satisfied if the injured customer proves that the business caused or knew about the spillage, or if the spillage was on the floor for so long that the business should have known about it. Proving these facts is difficult for customers who trip on spillage caused by other customers, because injured customers often cannot show how long the dangerous condition existed before they were hurt. To lessen this difficulty, the Supreme Judicial Court began using the “mode of operation” approach when considering whether businesses are responsible for injuries caused by other customers.

The mode of operation approach to premises liability recognizes that a business’s manner of operation can cause foreseeable dangers created by third parties’ negligence. The SJC adopted this approach in its 2007 decision of Sheehan v. Roche Brothers Supermarkets, where the plaintiff slipped on a fallen grape in a self-service supermarket. The SJC deemed that the supermarket’s mode of operation predictably caused fruit to fall to the floor, creating a foreseeable risk. Thus it would be unjust to expect the injured customer to prove the precise failure that caused the injury. The SJC adjusted the traditional approach to premises liability, holding that the first requirement of the four-pronged negligence test is satisfied where plaintiffs are injured by unsafe conditions that foreseeably result from a supermarket’s self-service mode of operation.

Next Steps: Nightclubs, Garden Stores

The SJC revisited this approach last year in Sarkisian v. Concept Restaurants Inc. The plaintiff in Sarkisian was a patron at a Boston nightclub. The nightclub offered a dance floor with nearby bars. Patrons purchased drinks at the bars and danced beneath strobe lights with drinks in hand. The plaintiff slipped on the wet dance floor, breaking her leg. She lost her suit in District Court and in the Appeals Court, but the SJC overturned those decisions. The defendant nightclub argued that the mode of operation approach should be limited to supermarkets, but the SJC disagreed. The SJC found that it was foreseeable that liquid would fall from cups to the dance floor and that patrons would slip and fall on the wet flooring. The SJC ruled in the plaintiff’s favor, and returned the case to the District Court for further proceedings.

Last month, the SJC decided Bowers v. P. Wile’s Inc., involving a patron injured at a garden store. The store maintained an outdoor area near a walkway, where customers helped themselves to landscaping items for sale. The area was covered with small stones, which often migrated to the walkway. The plaintiff tripped on some of these stones and fractured her hip. She sued in Superior Court, but lost there when the court declined to apply the mode of operation approach to her case. The Appeals Court reversed the judgment against her. On further appeal, the SJC ruled in the plaintiff’s favor, again invoking the mode of operation approach to hold that it was foreseeable that loose stones would end up on the walkway and cause a tripping hazard.

The SJC willingly expanded the mode of operation approach from supermarkets to nightclubs to garden stores. This expansion will likely continue to other establishments. Businesses should evaluate their existing modes of operation with this likelihood in mind. They should also timely pay their liability insurance premiums, which can be expected to increase.