On May 15, 2015, the Massachusetts Appeals Court announced a decision clarifying an important aspect of premises liability law in the Commonwealth and serves as a victory for plaintiffs in cases involving falls at commercial establishments.
In 2007, the Commonwealth's highest court adopted the "mode of operation" approach to premises liability cases, making it easier for plaintiffs to prove a storeowner's negligence. See Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007). In Sheehan, the plaintiff was injured after slipping and falling on grape that fell from a self-service display and to the ground. The plaintiff brought suit against the supermarket based on negligence and Court adopted the "mode of operation" approach. This approach is a variation to the traditional premises liability approach as it does not require a business owner to have constructive or actual notice of the dangerous condition on their premises (i.e., the grape on the ground) to be found negligent. Instead, the plaintiff only need establish that the dangerous condition was related to the owner's self-service mode of operation. The SJC explained that the rationale of the "mode of operation" approach is such that the owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to his customers, and since a self-service operation involves the reasonable probability that these risks will occur, these risks are foreseeable.
Today, the Massachusetts Appeals Court clarified Sheehan in the case of Bowers v. P. Wile's, Inc., No. 14-P-313 (Mass. App. Ct. 2015). In Bowers, the plaintiff fell after stepping on a "river stone" that had been on a store's sidewalk. The "river stone" had been kicked by customer traffic to the sidewalk from a gravel area maintained by the store. At the time the plaintiff was injured, the store displayed merchandise on and around the gravel area, and customers were allowed to help themselves to products from this area. The Appeals Court, reversing the trial court, held that the item causing the injury did not have to be an item offered for sale by the store for the "mode of operation" doctrine to apply. The Court reasoned that it should not matter whether the item that causes the injury was an item that was offered for sale or from any other foreseeable hazard occurring as a result of the store's use of a self-service mode of operation. The plaintiff in Bowers was successfully represented by SUGARMAN attorneys, Robert W. Casby and David P. McCormack. See Appeals Court decision.
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