The recent Massachusetts Supreme Judicial Court case of Bowers v. P. Wile’s Inc. is the SJC’s latest effort to address the “mode of operation” theory of premises liability.
Earlier, in Sheehan v. Roche Brothers Supermarkets (2007), the SJC approved this theory in the context of self-service food operations, where snacks and juices and the like are often spilled by customers. More recently, in Sarkisian v. Concept Restaurants (2015), the SJC approved this theory in the context of dance club operations, where exuberance and jostling often cause spilled drinks. In both of these earlier cases, the SJC abandoned the traditional rule of liability (which required the plaintiff to establish that the defendant knew or should have known of the hazard in question) in situations where the court felt that a defendant’s very “mode of operation” lent itself to frequent hazards. In these situations, the SJC concluded, business owners should be required to undertake reasonable affirmative efforts to prevent the hazards in the first place.
Notably, the dance-club defendant in Sarkisian argued that, if the SJC extended the mode of operation approach beyond self-service food establishments, it would be greatly expanding the potential liability of many different kinds of business establishments. Writing for the SJC, Justice Robert Cordy countered that no “parade of horribles” would result, that “reasonable care, not perfection” should be enough to guard business owners against untrammeled liability, and that in any event, coming down on the side of business owners was less important than coming down on the side of unsuspecting customers in cases involving a greater-than-usual degree of customer risk. Writing in Banker & Tradesman, this author felt that “the dance club had a point” and that many establishments, such as “nurseries” and “hardware stores” might fall under the new rule and be well-advised to be “more aggressive in preventing slips and falls.”
In its recent Bowers case, the SJC had its first chance to apply the “mode of operation” approach beyond self-service food and drink establishments. The case involved “a Cape Cod garden store … doing business as Agway of Cape Cod.” The plaintiff ventured into a gravel area near the front of the garden store, where sale items were displayed and customers were permitted to venture without employee assistance, and she allegedly “tripped on a stone that had migrated from the gravel area to the walkway.”
The trial judge awarded summary judgment for Agway. With Justice Fernande Duffly writing, the SJC reversed this decision, saying that the Sheehan and Sarkisian rationale was not limited to self-service food and drink establishments and was equally applicable to a garden store context involving a business owner’s actual or tacit invitation for customers to venture from a relatively safe and predictable walkway onto a relatively unsafe and unpredictable gravel area. The SJC believed that incidents like the one in which the plaintiff was involved easily could have been and (according to the discovery in the case) actually had been anticipated by the defendant, and therefore reasonable efforts should have been taken to prevent such incidents.
After writing the majority opinion in Sarkisian, Cordy wrote a dissenting opinion in Bowers. He lamented that the Bowers decision “substantially and unrecognizably expands our limited exception from traditional premises liability, such that the exception threatens to swallow the rule.” In Cordy’s view, there was a major difference between the self-service operations involved in Sheehan and Sarkisian, where food and drink spillage was highly predictable and actually contributed to the incident, and the gravel area of an Agway store, where the hazards are more random and less haphazard, and where – at least in Bowers – the plaintiff was not actually injured by the result of any self-service.
While it remains to be seen whether, by confirming that the mode of operation approach extends well beyond self-service food and drink establishments, the SJC now has invited the “parade of horribles” once dismissed by Cordy himself, the SJC definitely has invited one of those lesser parades – one that is inoffensive but, nonetheless, rather boring and sparsely attended and traffic-causing.
For a business owner, the problem goes beyond the possibility of being found liable in court years after a lawsuit has been filed. Well before then, it goes to risk management, insurance premiums, and having great difficulty knowing whether or not you come within the law. Some could say that this will lead to a beneficially greater cautiousness on the part of business owners, but others will say that the greater good requires that laws be more easily predictable.
Michael T. Sullivan is a litigation partner in the Boston law firm of Conn Kavanaugh Rosenthal Peisch & Ford LLP who handles a variety of commercial real estate disputes. He can be reached at
MSullivan@ConnKavanaugh.com.
