Extending Mode of Operation Claim for Premises Liability Cases

A recent decision by the Massachusetts Supreme Judicial Court (SJC) may present a new challenge for business owners, especially those who provide “self-service” options for their customers. In the recent case of Bowers vs. P. Wile’s, Inc., the court overturned a prior ruling that was in the Defendant’s favor, finding that the Plaintiff had sufficient grounds to hold the Defendant liable on the basis of the “mode of operation” rule.

Bowers vs. P. Wile’s Extended Mode of Operation Claim for Premises Liability Cases in Massachusetts

Case Summary

The Plaintiff alleged that the Defendant was liable for injuries she suffered after tripping on a stone that had migrated from a gravel area near a “self-service” concrete walkway leading into an area of the store where landscaping items were displayed. The Plaintiff alleged that the Defendant knew that migration of stones from the gravel area created a risk for tripping on the walkway and had failed to take measures to avert the risk.

Counsel for the Defendant argued that under the premise liability laws, the Plaintiff had to prove that the Defendant had “constructive notice of the presence of stone on the walkway”, something the Plaintiff admittedly could not do because she did not know how the stone ended up on the walkway, nor how long it had been there when she tripped.

Counsel for the Plaintiff then argued that his client could prevail under the “mode of operation” rule and that he would establish that the Defendant knew that the stone was on the walkway because the Defendant used the self-service gravel area as part of daily business operations. Therefore, the Defendant knew that customers walking on the gravel area could dislodge stones onto the walkway. An employee of the Defendant testified that staff was required to check the walkway every 15 minutes for stones, due to concern that customers walking in and around the gravel area might dislodge stones onto the walkway.

The Superior Court concluded that the mode of operation rule did not apply to this case and granted the Defendant’s motion for a summary judgment. The Supreme Judicial Court reversed the ruling.

What is the Mode of Operation Rule and What Does It Mean for Business Owners?

The mode of operation rule absolves a plaintiff of the burden of proving that a business owner had actual or constructive notice of unsafe or hazardous conditions on his property, but the plaintiff must establish that a dangerous condition existed solely as a result of the business owner’s method of operating his business. In turn, the business owner must prove that he exercised due care in operating his business.

The mode of operation rule can be a pivotal arguing point because it is based on the premise that customers do not always exercise proper and safe conduct when they are in a self-service area of a business. A restaurant owner, for example, who offers a self-service buffet could be held liable if a customer slips and falls on food that was dropped on the floor by another patron.

What Must a Plaintiff Prove?

A plaintiff must prove that:

  • A business owner was aware of, or would have discovered, a dangerous condition by exercising due care;
  • Said condition created an unreasonable risk of harm;
  • The business owner could not have expected the plaintiff to discover or protect him- or herself from the potential danger; and
  • The business owner neglected to exercise due care to protect the plaintiff.

Therefore, the Plaintiff, in this case, had to establish that:

  • There was a foreseeable risk of customers dislodging stones from the gravel area onto the walkway;
  • Stones on the walkway presented a foreseeable risk of tripping; and
  • Steps taken by the Defendant to prevent tripping and/or falling were unreasonable.

The Decision

The Supreme Judicial Court concluded that the Defendant’s method of maintaining the gravel area was a mode of operation that created a foreseeable risk of customers dislodging stones onto the walkway and creating a potential for a trip and fall. Therefore, the Court ruled that “the judgment in favor of the Defendant is vacated and set aside, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion.” The Court also stated a jury would have to determine whether the Defendant’s efforts to avert the risk of tripping on stones by informal inspection of the walkway constituted a reasonable means to avert the danger of tripping on stones that migrated onto the walkway.

What’s the Bottom Line?

The mode of operation rule should be a strong incentive for business owners to be as proactive as necessary to maintain and provide a safe environment for their patrons. If you were injured in a place of business and think you may have a case to which the mode of operation rule applies, contact the Law Office of John J. Sheehan to schedule a free consultation.

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