Opinion
13-P-154
10-17-2014
ANGELA SARKISIAN v. CONCEPT RESTAURANTS, INC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Angela Sarkisian, appeals from a decision and order of the Appellate Division of the District Court affirming summary judgment in favor of the defendant entered in the District Court. The Appellate Division concluded that the "mode of operation" approach to slip and fall liability, which dispenses with the requirement that a plaintiff prove that the defendant caused or had actual or constructive knowledge of the spilled liquid, does not apply to the facts of this case. See Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 786 (2007).
On appeal, the plaintiff argues that the mode of operation approach to premises liability should apply because the defendant's chosen business mode of operation made it reasonably foreseeable that drinks would be spilled on the floor of the defendant's club, creating a dangerous condition.
Facts. We view the evidence in the light most favorable to the plaintiff. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The Appellate Division's decision recited the following:
"On August 22, 2009, Sarkisian attended a bachelorette party at the Liquor Store in Boston, Massachusetts. The club contained a wooden dance floor, measuring fifty feet in length. There were two bars on the dance floor. To the rear of the dance floor, there were two steps leading to a lounge area. Patrons were permitted to bring their drinks onto the dance floor.
"Sarkisian and her friends arrived at the club around 9:45 P.M. As the night progressed, the club became busy and the dance floor crowded. The club was dimly lit, and strobe lights flashed onto the dance floor. At 1:30 A.M., Sarkisian left a group of friends on the dance floor, walked six feet to the stairs, and ascended the two steps to the lounge area to look for other friends. Sarkisian reached the lounge area, looked for her friends for less than one minute, and returned down the stairs to the dance floor. She took a few steps toward her friends, and slipped on a 'little puddle,' the size of about 'half a cup' of liquid. Her pants were 'soaked.' She broke her leg in two places."
Discussion. Under the traditional approach to slip and fall premises liability, the plaintiff "must identify the hazardous condition that caused [her] to slip, prove that it was present prior to [her] injury, and demonstrate that the defendant either caused the substance to be there, had actual knowledge of its existence, or had a reasonable opportunity to discover and remedy it." Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 337 (2003).
The Supreme Judicial Court first acknowledged a dissatisfaction with the traditional approach to slip and fall liability in Gilhooley v. Star Mkt. Co., 400 Mass. 205, 208 (1987), by observing that
"in an appropriate case, the keeper of a grocery store may be liable to a customer who slips on produce that is on the floor because of the storekeeper's negligent marketing and display thereof. It is not always necessary for liability that the produce have been on the floor long enough for the storekeeper to have had a reasonable opportunity to have seen and removed it."Twenty years later, in Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. at 785-786, the Supreme Judicial Court adopted the mode of operation approach while modifying, but not eliminating, the traditional approach to slip and fall premises liability. The court observed that
"[t]he modification of the traditional premises liability approach is, in large part, based on the change in grocery stores from individualized clerk-assisted to self-service operations and focuses on the reasonable foreseeability of a patron's carelessness in the circumstances, instead of on constructive or actual notice."Id. at 784.
A mode of operation exception to the traditional notice requirement had already been recognized in a number of jurisdictions before the Gilhooley decision. See, e.g., Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 400 (1987); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966); Mahoney v. J.C. Penney Co., 71 N.M. 244, 259 (1962); Worsham v. Pilot Oil Corp., 728 S.W.2d 19, 20 (Tenn. Ct. App. 1987); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983); Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 394 (1970); Steinhorst v. H.C. Prange Co., 48 Wis. 2d 679, 683-684 (1970); Buttrey Food Stores Div. v. Coulson, 620 P.2d 549, 552-553 (Wyo. 1980).
In certain slip and fall cases, the plaintiff is relieved of the requirement to prove that "the owner or the owner's employees had actual or constructive notice of the dangerous condition or to prove the exact failure that caused the accident." Id. at 790. In such a case the plaintiff is now required to prove that "the owner could reasonably foresee or anticipate that a foreseeable risk stemming from the owner's mode of operation could occur." Id. at 791. Negligence still must be inferred from the defendant's unreasonable disregard of its mode of operation and inadequate steps taken to protect the plaintiff from injury. Ibid.
In Sheehan, the court acknowledged that other jurisdictions modified their premises liability laws for slip and fall cases in an attempt to accommodate modern merchandising techniques. Id. at 784. The court has given no further direction since Sheehan was published in 2007. For the most part our trial courts have limited the mode of operation approach to application in self-service grocery stores, but this is not universally so, and as more cases are being pleaded using the mode of operation approach, it is being applied to diverse and unexpected situations.
The Superior Court has applied the mode of operation approach to movie theaters, generally holding that "the concept of mode of operation is the proper standard to be applied to the typical premises liability slip and fall case when the unique venue of a darkened movie theater auditorium is involved." Mills v. American Multi-Cinema, Inc., 30 Mass. L. Rep. 535, 536 (Mass. Super. 2012). Similarly, the mode of operation approach has been applied to a night club which may have handed beads to entering patrons and placed beads on club tables as part of a mardi gras event. "Just as the supermarket's mode of operation in providing a self-service grape display accessible to customers created a foreseeable risk that an errant grape would roll onto the floor and cause a hazardous condition, if L.J.B. placed several strings of beads on each table at the beginning of a Mardi Gras event, it could be reasonably foreseeable that patrons would pick up the beads and that, during the course of the festivities, beads would end up on the floor." Vincequere, v. L.J.B. & Assocs., Inc., 26 Mass. L. Rep. 85, 86 (Mass. Super. 2009). Of course, this logic implies that anything that does happen is always reasonably foreseeable.
Many of the jurisdictions relied on in Sheehan had already begun refining the application of the mode of operation approach, or have since reevaluated their earlier analysis and limited their earlier holdings, or were, at least in two cases, overruled by their State legislature. The Sheehan court relied primarily on State case law from Arizona, Kansas, Washington, Colorado, Connecticut, Florida and New Jersey when presenting our version of a mode of operation approach. Arizona, Kansas, Washington, and Connecticut courts have all clarified that there are limits to when their mode of operation approach applies. Florida and Colorado have both abrogated the approach by statute. See Fla. Stat. § 768.0755 (2010); Colo. Rev. Stat § 13-21-115 (2006). Since the case law has evolved sufficiently, but with different emphasis and conditions of application depending on the jurisdiction considered, we hesitate to expand or refine the limited and specific holding in Sheehan without further direction from the Supreme Judicial Court.
Arizona, which was relied upon primarily by the court in Sheehan, has expressed limitations to the mode of operation approach. They have since made an effort to define what "regularly" occurs means and have emphasized that the concept requires more than a showing that a few incidents occurred in the past. See Borota v. Univiversity Med. Center, 176 Ariz. 394, 396 (1993); Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 139 (2006). Kansas case law now agrees that there must be evidence that the dangerous condition would regularly occur for the exception to apply. Brock v. Richmond-Berea Cemetery Dist., 264 Kan. 613, 623-624 (1998). Kansas case law also holds that a self-service mode of operation is not inherently dangerous by itself and that the "rule is not intended to uniformly cover all self-service situations." Hembree v. Wal-Mart of Kansas, 29 Kan. App. 2d 900, 904 (2001). The Washington Supreme Court has clarified the rule stating that it "should be limited to specific unsafe conditions that are continuous or foreseeably inherent in the nature of the business or mode of operation," Wiltse v. Albertson's, Inc., 116 Wash. 2d 452, 461 (1991), and that the "rule does not apply to the entire area of the store in which customers serve themselves." Ingersoll v. DeBartolo, Inc., 123 Wash. 2d 649, 653-654 (1994). The Connecticut Supreme Court has clarified the mode of operation approach to situations in which a specific dangerous mode of operation is alleged beyond simply self-service. Fisher v. Big Y Foods, Inc., 298 Conn. 414, 419-420 (2010). Recently, in a situation similar to the one we consider here, the Connecticut Appeals Court expanded the mode of operation approach to businesses that are not strictly self-service but also clarified that the approach cannot be used if the alleged dangerous mode of operation is the "inevitable way of conducting the sort of commerce in which the business is engaged." Konesky v. Post Rd. Entertainment, 144 Conn. App. 128, 139, 142-143 (2013) ("The service of cold drinks will inevitably result in slippery surfaces, as drinks are spilled or condensation from drinks accumulates"). Similarly, the North Carolina Appeals Court, applying New Jersey law, held that movie theatres being darkened cannot be a dangerous mode of operation because the theatre has to be darkened to show the movie. Kearns v. Horsley, Donaldson & Black, 144 N.C. App. 200, 205 (2001).
We agree with the Appellate Division that the mode of operation approach to slip and fall cases does not apply to situations in which the defendant is not a self-service establishment. We also agree that the Liquor Store was not a self-service establishment within the meaning of Sheehan. The plaintiff therefore "must identify the hazardous condition that caused [her] to slip, prove that it was present prior to [her] injury, and demonstrate that the defendant either caused the substance to be there, had actual knowledge of its existence, or had a reasonable opportunity to discover and remedy it." Thorell v. ADAP, Inc., 58 Mass. App. Ct. at 337. The Appellate Division concluded, "[T]he evidence [does not] permit an inference that the Liquor Store was aware of the liquid or that the liquid had remained on the dance floor long enough so that, in the exercise of reasonable care, the Liquor Store should have discovered and remedied that condition." The plaintiff conceded that the liquid had appeared within "under a minute" of her having traversed the same path on the dance floor. We agree that "less than one minute could not provide a reasonable opportunity for staff to discover the spilled liquid."
Decision and order of the Appellate Division affirmed.
By the Court (Kafker, Trainor & Maldonado, JJ.),
Clerk Entered: October 17, 2014.