On June 23, 2015, the Supreme Judicial Court handed down its most significant decision in the area of premises liability since 2010. See Sarkisian v. Concept Restaurants, Inc., SJC-11786, 2015 WL 3833877 (Mass. June 23, 2015). In Sarkisian, the court was asked to “decide whether the ‘mode of operation’ approach to premises liability, adopted . . . in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788, 863 N.E.2d 1276 (2007), applies to slip-and-fall incidents occurring outside of the context of self-service establishments.” Id., at *1.
The “mode of operation” approach, adopted by the Sheehan court, itself comprises an exception to the ordinary rules of premises liability. “As a general rule, Massachusetts has adhered to the traditional approach to premises liability.” Sarkisian, supra, at *2. The traditional approach
provides that ‘[a] possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.’
Id., quoting the Restatement (Second) of Torts § 343 (1965). Thus, traditionally, a great number of premises liability claims would inherently fail, as a matter of fact and law, where the owner of the property did not have actual or constructive notice of a dangerous condition at the property. The only exception to this notice requirement, under the traditional approach, was if the property owner created the dangerous condition himself. Sheehan, supra, at 782-783.
In Sheehan, however, the court made further exception to the notice requirement: the adoption of the so-called mode of operation approach. See id., at 788. “This approach focuses on ‘the nature of the defendant’s business [that] gives rise to a substantial risk of injury to customers from slip and fall accidents.'” Id., at 785-786, quoting Safeway Stores, Inc. v. Smith, 658 P.2d 255, 258 (Colo. 1983). It “also considers whether ‘the plaintiff’s injury was proximately caused by such an accident within the zone of risk.'” Sheehan, supra, quoting Safeway Stores, supra. “[W]here an owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner could be held liable for injuries to an invitee if the plaintiff proves that the store owner failed to take all reasonable precautions necessary to protect invitees from these foreseeable dangerous conditions.” Sheehan, supra.
According to the Sheehan court, the rationale for this change in the law was “to accommodate modern merchandising techniques”, i.e., “the change in grocery stores from individualized clerk-assisted to self-service operations”. Id., at 784. “In a self-service grocery store, merchandise is easily accessible to customers, which results in foreseeable spillage and breakage that customers may encounter while shopping, thus requiring store owners to use a degree of care commensurate with the risks involved.” Id. “Spillage and breakage is attributable to customers who generally may not be as careful and vigilant as a store owner because customers are not focused on the owner’s concern of keeping items off the floor to avoid potential foreseeable risks of harm to other patrons.” Id., at 784-785. “Additionally, customers often focus on displayed items that are arranged specifically to attract their attention, often making them unaware of what might be on the floor.” Id., at 785. Recognizing these changes in merchandising and business models, the approach “focuses on the reasonable foreseeability of a patron’s carelessness in the circumstances, instead of on constructive or actual notice.” Sheehan, supra, at 784.
In adopting this approach, the court nonetheless did “not modify the general rule governing premises liability requiring a plaintiff to prove that an owner had either actual or constructive notice of an unsafe condition on the premises. However, if a plaintiff proves that an unsafe condition on an owner’s premises exists that was reasonably foreseeable, resulting from an owner’s self-service business or mode of operation, and the plaintiff slips as a result of the unsafe condition, the plaintiff will satisfy the notice requirement.” Id., at 791. “[A] store owner will be liable to a plaintiff injured as a result of a dangerous condition caused by a third party only if the owner could reasonably foresee that the dangerous condition could occur, resulting from the owner’s chosen mode of operation, and the owner took inadequate steps to forestall resulting injuries.” Id., at 791-792 (emphasis added). Therefore, in invoking the mode of operations approach, the premises liability plaintiff still must satisfy the other required elements of such a claim, quoted from the Restatement above. Id., at 792.
Sarkisian is highly significant because it expands the application of the mode of operations approach beyond self-service establishments. Specifically in Sarkisian, the plaintiff was a patron at a night club in Boston, who slipped, fell and broke her leg because of a wet dance floor, ostensibly caused by other patrons spilling their drinks. See id., at *1. A District Court judge granted summary judgment to the nightclub owner because the plaintiff could not show either actual or constructive notice of the dangerous condition on the dance floor, and the Appellate Division of the District Court and the Appeals Court affirmed.
The Supreme Judicial Court, on further appellate review, reversed and held that the mode of operations approach is not limited to self-service businesses and applies to Ms. Sarkisian’s claim. The Sarkisian court reasoned that
[t]he principles set forth in the Restatement (Second) of Torts are consistent with the application of the mode of operation approach outside of the context of self-service establishments. The Restatement provides that a possessor of land who holds it open to the public for business purposes has a duty to exercise reasonable care to protect business visitors from harms caused by third parties, e.g., other business visitors. The comments observe that although a warning will often supply the necessary protection, there are ‘many situations in which the possessor cannot reasonably assume that a warning will be sufficient.’ In such a situation, the landowner is ‘required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons . . . may conduct themselves in a manner which will endanger the safety of the visitor.’ These comments reflect fundamental principles of tort liability that transcend the distinction between an errant grape in a supermarket aisle and a spilled beverage on a dance floor.
Id., at *3, quoting Restatement (Second) of Torts § 344, comment d (citations omitted). The Sarkisian court further reasoned that Sheehan had “limited the mode of operation approach to situations where a business should reasonably anticipate that its chosen method of operation will regularly invite third-party interference resulting in the creation of unsafe conditions, and a visitor suffers an injury after encountering the condition so created.” Id., at *4. “The court in Sheehan did not, however, limit this modern refinement of the notice requirement to unsafe conditions arising from self-service operations.” Id. Accordingly, the court held that, “so long as the aforementioned parameters for applying the mode of operation approach exist, there is no basis for limiting its application to self-service establishments.” Id.
The Sarkisian court then went on to conclude, in particular, that nightclubs, such as the one at issue, are subject to the mode of operations exception to the traditional approach’s notice requirement:
Here, the nightclub’s mode of operation included the sale of beverages in plastic cups from bars located on a dance floor. The patrons were then permitted to dance while holding their beverages. It was reasonably foreseeable that such a mode of operation would result in a recurring theme of cups being jostled and liquid being jettisoned by patrons onto the dance floor. Where that liquid is spilled on a floor, crowded with dancers, in a dimly lit setting with flashing strobe lights, and the only route of travel to and from the lounge area is across that dance floor, common sense tells us that the spill creates an unsafe condition that a patron such as the plaintiff is ill-suited to discern, except, perhaps, by the happenstance of a slip and fall.
Id., at *5. In extending the approach to such nightclubs, the court explicitly relied upon Coesian economics and the concept of the least cost avoider. See id. (“[a]lthough the general risk of an unsafe condition occurring might be equally obvious to both owner and patron, under these circumstances, the owner is in a far better position to identify and investigate the source of the condition once it has occurred”). The court also relied on the reasonable commercial expectations of patrons. See id. (“[m]oreover, it is not reasonable for the owner to ignore a recurring risk of danger arising from its chosen mode of operation where it would be reasonable to expect that a patron who has entered the establishment for the purpose of dancing would choose to encounter that risk rather than turn back”).
In response to the defendant’s citation to the usual “parade of horribles”, the court cautioned that, under this approach, “[a] plaintiff does not get to the jury simply by showing that an establishment sells drinks to patrons who are then allowed to travel about the premises.” Id., at *6. “A plaintiff may get to the jury, however, by showing that patrons who wish to travel between the bar and their seats are forced-as a recurring feature of the mode of operation-to navigate in the dark through a crowd of dancing people holding plastic cups filled with liquid over a wooden floor. Spillage is conceivable in either circumstance, but only in the latter is the regularity of such spillage tied to the mode of operation in a manner that justifies placing the business on notice of the resulting unsafe condition.” Id.
Regardless of this caveat, however, there is no question that Sarkisian is a huge boon to plaintiffs’ bar. Sarkisian also fits into a greater trend of plaintiff-friendly decisions from the Commonwealth’s high court, starting with Sheehan and including Papadopoulos v. Target Corp., 457 Mass. 368 (2010), which ended Massachusetts’ “natural accumulation” rule. Despite Justice Cordy’s attempt to cabin Sarkisian‘s holding, the mere potential of being relieved of the notice requirement in premises liability cases will increase the transactions costs of resolving these disputes. Property owners beware.
Written by Nicholas P. Shapiro, Esq., on behalf of Jeffrey T. Angley, P.C
Copyright (c) 2011-2015 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.