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The Supreme Judicial Court Expands the Scope of the “Mode of Operation” Approach to Premises Liability
By Jennifer Sheehan, Esq.

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The Massachusetts Supreme Judicial Court (“SJC”) recently issued a decision which could potentially expand the application of the “mode of operation” theory in premises liability cases.  In Bowers v. P. Wiles, Inc.[1], SJC-11923 (July 28, 2016) (slip opinion), the SJC found that this theory applied to landscaping and similar aesthetic decisions made by a retailer regarding its retail space, and not, as has previously been the case, only in cases where the claimed injury was a direct result of a retailer’s customers being permitted to directly access the goods for sale. 

The plaintiff in Bowers was a customer at the defendant’s garden supply store and walked to the store by means of a walkway which ran between the parking lot and the store’s entrance.  Adjacent to the walkway is a gravel area, approximately six feet wide, on which Agway displays landscaping merchandise for sale.  Agway customers may help themselves to the products in this area.  The gravel in this area was described as being comprised of “river stones.”  The plaintiff was injured when she tripped on one of these stones which had somehow migrated from the gravel area onto the walkway. 

The trial court allowed Agway’s motion for summary judgment, agreeing with Agway that the plaintiff could not prove that Agway had actual or constructive notice of the stone’s presence in the walkway, and therefore could not establish an essential element of her claim (i.e., that Agway knew of the existence of the hazard but failed to take steps to mitigate the risk).  In so finding, the trial court rejected the plaintiff’s argument that the “mode of operation” approach should be applied because of Agway’s decision to use a “self-service gravel area as part of its daily operation” and its awareness that “customers [walking in the gravel area] might dislodge stones onto the walkway.”  The Appeals Court reversed, and the case came to the SJC on Agway’s motion for further appellate review.

The “mode of operation approach” is an exception to the general rule that before a landowner can be held liable for an injury sustained on his premises due to a hazardous condition, the plaintiff must show that the owner had actual or constructive notice of the existence of the hazard and has had sufficient time to remedy it.  The approach is based on the idea that a storeowner’s chosen manner of operation can create foreseeable hazards due to the actions of third parties, from which the storeowner must take reasonable steps to protect its customers.  It essentially relieves a plaintiff of establishing the notice element of his premises liability claim; instead, he can prove the requisite notice by showing that his injury was the result of “a condition inherent in the way the store is operated.”        

Until Bowers, the approach has usually been applied in a narrow category of premises liability cases:  those where a store permits customers to interact with and carry around the products for sale.  See, e.g., Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780 (2007) (plaintiff injured when she slipped on a grape which had fallen on floor area of self-serve produce section); Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679 (2015) (plaintiff injured when she slipped on spilled drink at nightclub where customers were permitted to carry drinks around all areas of club).  As the dissenting opinion points out, this exception was intended to be narrowly applied, since “nearly every business enterprise produces some risk of customer interference.” 

However, despite this historically narrow application of the doctrine, the SJC in Bowers concluded that Agway’s decision to use “gravel, rather than another, nonmobile surface” for the self-service area potentially put it within the realm of “mode of operation” cases.  The SJC found that there was a disputed question of fact as to whether in making such a decision, Agway created the recurring and foreseeable hazard of customers walking through the self-service area and then tracking or kicking stones on the paved walkway.  To the extent a jury were to conclude that Agway’s chosen “mode of operation” did create such a risk, there would then be a question of whether Agway had taken reasonable steps to protect customers from said risk.

The Bowers case is a departure from the usual “mode of operation” case in several respects.  First, the plaintiff was not injured by a product that was accessible to and could be carried around by other patrons; rather, she was injured on a walkway by gravel covering an adjacent area.  Second, the decision to use gravel as said material is not related to the store’s mode of operation, as the customer’s ability to access the landscaping items in the gravel area – as opposed to requiring assistance from store employees to get the items – did not play a role in the plaintiff’s injury.  She could have sustained the same injury if only employees, rather than customers, were allowed in the gravel area, or if there were no products displayed in the gravel area.  Under either of those scenarios, the migration of a stone from the gravel area to the walkway would have been analyzed according to traditional premises liability principles.

The SJC’s decision was a review of the denial of a summary judgment motion, and therefore  states only that there is a “disputed question of fact as to whether Agway’s choice of gravel rather than another [material] … represents a ‘particular’ mode of operation” that created the aforementioned hazard.  However, because this decision expands the application of the “mode of operation” approach to aesthetic decisions about a retail premises that do not necessarily relate to customer access to products, property owners should be aware of its implications and may want to reassess the steps they take with regard to customer safety in all areas of a premises to which a customer has access.            

[1] Doing business as Agway of Cape Cod.

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