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WILLIAM BREKKA
ABSTRACT
In Sheehan v. Roche Brothers Supermarkets, Inc. the SJC adopted the
mode-of-operation approach to premises liability in a case involving a slipand-fall in a self-service supermarket. This approach eliminates the
traditional notice requirement where the defendants mode of operation
makes the creation of dangerous conditions reasonably foreseeable.
Recently, however, lower courts have struggled with the issue of whether
the approach applies outside of the self-service supermarket context. This
Note argues that the mode-of-operation approach should not be restricted
to the self-service supermarket context, but should be extended to
situations where the owners mode of operation makes the creation of
dangerous conditions by third parties reasonably foreseeable. While the
Sheehan decision involved a self-service supermarket, it is not clear whether
the Court intended to limit its holding to self-service businesses.
Regardless, the reasons behind the adoption of the mode-of-operation
approach logically extend to situations in which a specific mode of
operation adopted by the defendant makes the creation of dangerous
conditions by third parties, as opposed to the owner or its employees,
reasonably foreseeable. The approach stems from the notion that it is unfair
to require plaintiffs to prove notice where the owners operation methods
themselves make dangerous conditions foreseeable, especially because
owners are usually in a better position to investigate the situation than an
injured plaintiff. Because many modes of operation, other than selfservice, make the creation of dangerous conditions by customers
Juris Doctor, magna cum laude, New England Law | Boston (2014). B.A., History, cum laude,
College of the Holy Cross (2011). I would like to dedicate this Note to my parents, who
inspired me to go to law school and become a lawyer. I would also like to thank my girlfriend,
Laura, for her support and patience during the writing process.
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INTRODUCTION
raditionally, a premises-liability action, commonly known as a slipand-fall case, required the plaintiff to prove that the defendant had
actual or constructive knowledge of the condition that caused the
1
harm. This required proof that the dangerous condition existed long
enough to allow the owner to remedy it.2 However, in Sheehan v. Roche
Bros. Supermarkets, Inc., the Supreme Judicial Court of Massachusetts
(SJC) modified this approach and adopted the mode-of-operation
approach within the context of self-service supermarkets.3 Under this
approach, the plaintiff satisfies the notice requirement if the defendants
mode of operation makes the creation of dangerous conditions reasonably
foreseeable.4
In Sheehan, the SJC held that the mode-of-operation approach applies to
a dangerous condition created by a supermarkets self-service mode of
operation.5 Recently, however, lower courts have struggled with whether
Sheehans mode-of-operation approach applies beyond the self-service
supermarket context.6 Allowing customers to help themselves to groceries
is not, after all, the only mode of operation that makes the creation of
dangerous conditions reasonably foreseeable. 7 Some courts have limited
the approach solely to the self-service supermarket context while others
have concluded that its rationale logically extends to other situations where
See Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 1281 (Mass. 2007).
See id.
3 Id. at 1284.
4 Id. at 1283.
5 See id. at 1279, 128687.
6 See, e.g., Sarkisian v. Concept Rests., Inc., 2012 Mass. App. Div. 191, 19192 (Dist. Ct.
2012); Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *23 (D. R.I. June 15, 2010).
7 See, e.g., Sarkisian, 2012 Mass. App. Div. at 19192 (allowing nightclub patrons to bring
drinks onto a crowded dance floor); Vincequere v. L.J.B. & Assocs., No. WOCV072504A, 2009
WL 3084254, at *12 (Mass. Super. Ct. Aug. 13, 2009) (placing Mardi Gras beads on tables in a
nightclub); Marcione, 2010 WL 2697595, at *13 (allowing customers at a fast-food restaurant to
transport food to and from their table).
2
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8 Compare Sarkisian, 2012 Mass. App. Div. at 19192, with Mills v. Am. Multi-Cinema, Inc.,
No. ESCV201101089C, 2012 WL 6928121, at *12 (Mass. Super. Ct. Nov. 15, 2012).
9
10
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[I]f, 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.11
11
Id.
See Sheehan, 863 N.E.2d at 1280.
13 Id.
14 See id.
15 Id. at 1284.
16 Id. at 1279.
17 Sheehan, 863 N.E.2d at 127980.
18 Id. at 1284.
19 Id. at 128182.
20 Id.
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or spill items and cause them to fall on the floor.21 As a result, store owners
must exercise a degree of care commensurate with [these increased] risks
of harm.22
The mode-of-operation approach addresses these modern concerns by
eliminating the notice requirement if the defendants mode of operation
creates a foreseeable risk that a dangerous condition will occur. 23 The
plaintiff is still required to prove negligence, i.e. that the defendant failed
to act reasonably in preventing foreseeable injuries. 24 In contrast, the
burden-shifting approach, another modification to traditional premises
liability adopted by some jurisdictions, creates a rebuttable presumption of
negligence, shifting the burden to the defendant to prove that he or she
acted reasonably to prevent foreseeable harm. 25 In adopting the mode-ofoperation approach, the SJC emphasized its fairness, noting that when a
plaintiff is injured on the defendants premises, it is unjust to saddle the
plaintiff with the burden of isolating the precise failure that caused an
injury, particularly where a plaintiffs injury results from a foreseeable risk
of harm stemming from an owners mode of operation.26
II. Does the Mode-of-Operation Approach Apply Outside of the SelfService Supermarket Context?
A. Massachusetts Courts Are Conflicted as to How the Mode-ofOperation Approach Applies
Since Sheehan, Massachusetts courts, and federal courts applying
Massachusetts law, have struggled deciding whether the mode-ofoperation approach applies outside of the self-service context.27 In most
cases, courts have declined to extend Sheehan beyond the self-service
context.28 A few courts, however, have recently been willing to.29
21
Id. at 1282.
Id.
23 Sheehan, 863 N.E.2d at 1283.
24 Id.
25 Id. at 128384.
26 Id. at 1284 (citing Wollerman v. Grand Union Stores, Inc., 221 A.2d 513 (N.J. 1966)).
27 See, e.g., Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *12 (D. R.I. June 15,
2010); Sarkisian v. Concept Rest., Inc., 2012 Mass. App. Div. 191, 19192 (Dist. Ct. 2012).
28 See, e.g., Sarkisian, 2012 Mass. App. Div. at 19192; Tavernese v. Shaws Supermarkets,
Inc., No. 07-P-1829, 2008 WL 2726318, at *1 (Mass. App. Ct. July 15, 2008) (unpublished table
decision); Pittsley v. Saunstar Land Co., No. 06-P-1532, 2007 WL 2580485, at *1 n.4 (Mass. App.
Ct. Sept. 7, 2007) (unpublished table decision); Marzilli v. UMass Meml Med. Ctr., Inc., No.
WOCV201002623B, 2012 WL 6616871, at *12 (Mass. Super. Ct. Aug. 29, 2012); Yeshulas v.
22
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Macys Retail Holdings, Inc., No. SUCV200903509G, 2012 WL 3193528, at *12 (Mass. Super.
Ct. June 13, 2012); Frank v. Westwood Assocs., Inc., No. 071798, 2008 WL 1799765, at *2 (Mass.
Super. Ct. Apr. 1, 2008).
29
See, e.g., Mills v. Am. Multi-Cinema, Inc., No. ESCV201101089C, 2012 WL 6928121, at *1
2 (Mass. Super. Ct. Nov. 15, 2012); Marcione, 2010 WL 2697595, at *3; Vincequere v. L.J.B. &
Associates, Inc., No. WOCV072504A, 2009 WL 3084254, at *12 (Mass. Super. Ct. Aug. 13,
2009).
30
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onto a crowded dance floor all but guarantees spillage and presents a real
risk of injury. Over time, in cases such as this, it may be that the law will be
expanded.39
In Tavernese v. Shaws Supermarkets, Inc., the Massachusetts Appeals
Court held, in an unpublished decision, that the mode-of-operation
approach did not apply where the plaintiff slipped and fell in the entrance
to a supermarket.40 The court reasoned that Sheehan only alleviated the
plaintiffs burden to prove notice where the dangerous condition resulted
from the stores self-service mode of operation.41 Since the stores selfservice mode of operation did not cause the slippery condition in the
stores entrance, Sheehans mode-of-operation approach did not apply.42
Instead, the court concluded that the case was properly governed by Wexler
v. Stanetsky Memorial Chapel of Brookline, Inc.,43 which held that negligence
on the part of the premises owner cannot be found where transitory
conditions . . . due to normal use in wet weather, according to ordinary
experience could not in reason have been prevented.44
Similarly, in Yeshulas v. Macys Retail Holdings, Inc., a superior court
judge held that Sheehans mode-of-operation approach did not apply where
a plaintiff slipped on water in an aisle at Macys.45 The judge noted that
Massachusetts courts have been unwilling to expand the mode-ofoperation test beyond the self-service context, and since the record did not
demonstrate that the defendants self-service mode of operation caused her
fall, the approach did not apply.46 As in Tavernese, the case was governed
by the transitory-condition doctrine set forth in Wexler.47
The Massachusetts Appeals Court has also held that Sheehan did not
apply where a construction worker fell down a flight of stairs at a
construction site, noting that Sheehan only applies to certain self-service
retail defendants and did not modify the traditional approach to premises
39
Id.
No. 07-P-1829, 2008 WL 2726318, at *1 (Mass. App. Ct. July 15, 2008) (unpublished table
decision). The plaintiff slipped on a combination of ice, slush, and water as she walked
through the main entrance of the supermarket. Tavernese v. Shaws Supermarket, Inc., No. 052080, 2007 WL 5086440 (Mass. Super. Ct. Aug. 27, 2007).
40
41
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Some courts, however, have been willing to extend Sheehan beyond the
self-service context.52 For example, in Mills v. American Multi-Cinema, a
superior court judge held that Sheehan could apply to a slip-and-fall in a
movie theatre.53 In that case, the plaintiff slipped and fell on some ice in a
dark movie theatre and sustained significant injuries.54 In holding that
Sheehans mode-of-operation approach could apply, the court reasoned that
the dark movie theatre, coupled with the fact that patrons could purchase
food and drinks and bring them into the theatre, created a uniquely
dangerous environment.55 Patrons are unlikely to see things like spilled
food and beverages on the floor, creating a foreseeable risk of dangerous
conditions.56 As a result, the traditional approach to premises liability is
inadequate to the task of providing reasonable safety conditions, and it is
up to a jury to decide whether or not the frequency and mode of
inspections and maintenance employed by the owner or operator is
reasonable.57
In Vincequere v. L.J.B. & Associates, Inc., a superior court judge held that
the mode-of-operation approach could apply where the plaintiff slipped on
48
Pittsley v. Saunstar Land Co., No. 06-P-1532, 2007 WL 2580485, at *1 & n.4 (Mass. App.
Ct. Sept. 7, 2007) (unpublished table decision).
49 No. 071798, 2008 WL 1799765, at *2 (Mass. Super. Ct. Apr. 1, 2008).
50 Marzilli v. UMass Meml Med. Ctr., Inc., No. WOCV201002623B, 2012 WL 6616871, at *1
2 (Mass. Super. Ct. Aug. 29, 2012).
51
Id.
See infra text accompanying notes 5367.
53 Mills v. Am. Multi-Cinema, Inc., No. ESCV201101089C, 2012 WL 6928121, at *12 (Mass.
Super. Ct. Nov. 15, 2012).
52
54
Id. at *1.
Id. at *12.
56 See id.
57 Id. at *2.
55
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58
No. WOCV072504A, 2009 WL 3084254, at *12 (Mass. Super. Ct. Aug. 13, 2009).
Id. at *1.
60 Id.
61 Id. at *2.
62 Id.
63 No. 09-591ML, 2010 WL 2697595, at *3 (D. R.I. June 15, 2010).
64 Id. at *1.
65 Id. at *3.
66 Id.
59
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67
Id.
See, e.g., Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 25960, 265 (Fla.
2002); FGA, Inc. v. Giglio, 278 P.3d 490, 493 (Nev. 2012); Iwai v. State, 915 P.2d 1089, 1096, 1098
(Wash. 1996).
68
69
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79
Id. at 1096.
See id.
81 See id. at 1097.
82 Iwai, 915 P.2d at 109798.
83 Id. at 1098.
84 Id.
85 See id.
86 See, e.g., Fredrickson v. Bertolinos Tacoma, Inc., 127 P.3d 5, 7, 910 (Wash. Ct. App.
2005) (declining to extend the Pimentel exception where the plaintiff was injured by sitting in a
broken chair); Casey v. Safeway, Inc., No. 43882-4-I, 1999 WL 1033565, at *23 (Wash. Ct. App.
Nov. 15, 1999) (declining to extend the Pimentel exception where plaintiff slipped and fell at a
checkout counter in a store).
80
87
E.g., Markowitz v. Helen Homes of Kendell Corp., 826 So. 2d 256, 25961, 265 (Fla. 2002).
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operation approach.88 In Markowitz, a majority opinion held that the modeof-operation approach was not limited to self-service supermarkets,
stating: The mode of operation theory of negligence is not a new principle
of law and is not unique to a particular business.89 As a result, the Court
held that the approach applied where the plaintiff slipped on a grape in a
nursing home and alleged that the grape ended up on the floor because of
the homes mode of operation of allowing residents to carry their food
from the dining room to their rooms.90 Two dissenting justices, however,
disagreed that the mode-of-operation approach could apply to the case.91
These justices argued that the mode-of-operation approach was adopted in
light of the changing nature of supermarkets and other retail stores and the
difficulty of litigating slip-and-fall cases involving such establishments.92
Because of this, the mode-of-operation approach was meant to apply solely
to supermarkets and retail establishments and should not extend to cases
involving nursing homes, especially given the lack of a difficult history in
litigating such cases and the important role that nursing homes play in
caring for the elderly.93
Connecticut also follows the mode-of-operation approach and has
recently struggled with the doctrines scope.94 The Supreme Court of
Connecticut adopted the mode-of-operation approach to premises liability
in Kelly v. Stop & Shop, Inc.95 In Kelly, the plaintiff slipped and fell while
making a salad at a self-service salad bar in the defendants supermarket.96
Adopting the mode-of-operation approach, the Court stated that a
plaintiff establishes a prima facie case of negligence upon presentation of
evidence that the mode of operation of the defendants business gives rise
to a foreseeable risk of injury to customers and that the plaintiffs injury
was proximately caused by an accident within the zone of risk.97 Because
customers serving themselves at the salad bar regularly caused food to fall
88
802 So. 2d 315, 332 (Fla. 2001). The Florida legislature later reinstated the traditional
approach requiring that the plaintiff prove notice. David M. Gagnon & Gina A. Peretti, Section
768.0755, Florida Statutes: Reinstating the Traditional Premises Liability Doctrine, TRIAL ADVOC.
Q., Spring 2011, at 23, 23.
89
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on the floor, the salad bar created a reasonably foreseeable risk of danger. 98
Although the facts of the case concerned a self-service operation, the Court
did not expressly limit its holding to self-service businesses.99
In Fisher, however, the Supreme Court of Connecticut implied that the
mode of operation only applies within the context of self-service
establishments.100 Beyond this, the Court held that the fact that the injury
occurred within a self-service business is not enough to trigger application
of the mode-of-operation approach.101 Rather, the plaintiff must
demonstrate that a more specific method of operation within a self-service
retail environment gave rise to a foreseeable risk of a regularly occurring
hazardous condition similar to the particular condition that caused the
injury.102 As a result, the Court held that the plaintiff was not entitled to
proceed under the mode-of-operation approach when she slipped on fruit
cocktail syrup, which had leaked out of a packaged fruit product that had
fallen on the floor, because she had not introduced any evidence that the
defendants method of displaying the fruit products made their spillage
inherently foreseeable or regularly occurring.103
III. Policy Arguments Surrounding the Mode-of-Operation Approach
A. Strict Liability for Store Owners
One critique of the mode-of-operation approach is that it will subject
store owners to strict liability for injuries occurring on their premises. 104
Some argue that in many cases applying the mode-of-operation approach,
courts have not required the plaintiff prove a causal connection between
the defendants negligent mode of operation and the injury sustained. 105 As
a result, the trier of fact is allowed to impose liability whenever a plaintiff
proves that the defendants mode of operation created a foreseeable risk of
harm, even though the actual injury was not a result of that mode of
operation.106 While some courts claim to still require the plaintiff prove that
98
Id. at 264.
See id. at 26364.
100 See Fisher v. Big Y Foods, Inc., 3 A.3d 919, 92728 (Conn. 2010).
101 Id. at 928.
102 Id. (emphasis in original).
103 Id. at 936.
104 See Steven D. Winegar, Comment, Reapportioning the Burden of Uncertainty: Storekeeper
Liability in the Self-Service Slip-and-Fall Case, 41 UCLA L. REV. 861, 888 (1994) (outlining
multiple cases across the nation where strict liability was imposed).
99
105
106
Id.
Id.
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the defendant acted unreasonably, it is not entirely clear what this means
and there remains a risk that the causation issue will be ignored, leaving
the trier of fact free to impose strict liability.107
Not all agree, however, that the mode-of-operation approach is the
equivalent of strict liability.108 Some argue that the approach merely
removes the plaintiffs burden to prove notice; it does not remove the
plaintiffs burden to prove that the defendant acted unreasonably under
the circumstances.109 As the Supreme Judicial Court stated in Sheehan:
Adoption of this approach would not hold owners strictly liable
to all plaintiffs involved in slip-and-fall accidents on their
premises, but would only make an owner liable if the owner
could reasonably foresee that a dangerous condition exists and
failed to take adequate steps to forestall resulting injuries. A
plaintiff would still be required to present evidence supporting
his or her case and to bear the burden of persuading the trier of
fact that the defendant acted unreasonably in the
circumstances.110
107
See id.
See, e.g., Kelly v. Stop & Shop, Inc., 918 A.2d 249, 26263 (Conn. 2007); Sheehan v. Roche
Bros. Supermarkets, Inc., 863 N.E.2d 1276, 128586 (Mass. 2007).
108
109
112
See Renee W. Dwyer & Russell N. Jarem, Slip and Fall in Aisle Four: Modern Premises
Liability Challenges to Retail Operations, FOR THE DEF., Feb. 2012, at 46, 50; Roy A. Cohen &
Jeffrey M. Pyzpcznski, Defending Property Owners in Toxic and Hazardous Substances-Related
Premises Liability Litigation, 74 DEF. COUNSEL. J. 35, 46 (2007).
113
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114
117 See id.; Venus Zilieris, Floridas Slip and Fall Law, Abandoned and Re-Established: Owens v.
Publix Supermarkets, Inc. Versus Floridas Legislature: A Tug of War on Who Bears the Burden of
Proof, 27 NOVA L. REV. 191, 21819 (2002) (noting that in the past, supermarkets had a history
of winning slip-and-fall cases, and therefore did not pay much attention to them or do much
to improve their maintenance procedures).
118
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ANALYSIS
IV. The Sheehan Mode-of-Operation Approach Should Not Be Limited to
the Self-Service Supermarket Context
A. The Sheehan Opinion Does Not Limit the Mode-of-Operation
Approach to Self-Service Supermarkets
The Sheehan case involved a slip-and-fall accident occurring in a selfservice supermarket.127 In its analysis, the SJC explained that the modern
trend towards modifying the traditional premises liability approach was
largely brought on by the fact that grocery stores have changed from
individualized clerk-assisted operations to self-service operations.128 Yet
121
Id. at 218.
Id. at 21718.
123 Zilieris, supra note 117, at 21921; Gagnon & Peretti, supra note 88, at 23.
124 See Ravech, supra note 116, at 9192.
125 Lyon v. Morphew, 678 N.E.2d 1306, 1310 (Mass. 1997).
126 See Ravech, supra note 116, at 9192 & n.65.
127 Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 127980 (Mass. 2007).
128 Id. at 128182.
122
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it is not entirely clear whether the SJC intended to limit the approach solely
to cases involving self-service businesses.129 On the one hand, in explaining
the mode-of-operation approach, the Court often refers to self-service
businesses and the foreseeable risks that such a mode of operation creates
for customers, suggesting that the approach applies solely to self-service
supermarkets.130 On the other hand, however, the Court may have simply
focused on self-service supermarkets because that was the type of business
at issue in the case, not because they are the only sort of business to which
the mode-of-operation approach applies.131
In summarizing its holding, the SJC stated: [I]f a plaintiff proves that
an unsafe condition on an owners premises exists that was reasonably
foreseeable, resulting from an owners 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.132 This quotation is
ambiguousit is not clear whether the Court meant that the approach only
applies to self-service businesses and self-service modes of operation, or if
it applies to self-service businesses and any other mode of operation that
creates a reasonably foreseeable risk of harm, whether self-service or not.133
However, in refuting the claim that the mode-of-operation approach
subjects owners to strict liability, the Court did not use language limiting
the approach to self-service supermarkets.134 Rather, the Court explained
that proof of a particular mode-of-operation simply substitutes for the
129 See Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *3 (D.R.I. June 15, 2010).
Compare Sarkisian v. Concept Rest., Inc., 2012 Mass. App. Div. 191, 19192 (Dist. Ct. 2012), with
Mills v. Am. Multi-Cinema, Inc., No. ESCV201101089C, 2012 WL 6928121, at *12 (Mass.
Super. Nov. 15, 2012).
130
Id.
131
See id. at 1283 (noting that the mode-of-operation approach applies where an owners
chosen mode of operation makes it reasonably foreseeable that a dangerous condition will
occur); see also Marcione, 2010 WL 2697595, at *3 ([T]here is nothing contained in Sheehan
expressing the SJCs intent to limit its holding to self-service grocery stores . . . .).
132
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traditional elements of a prima facie case.135 The fact that the SJC simply
referred to proof of a particular mode of operation, not a self-service
mode of operation, suggests that the SJC may not have intended to limit
the approach to self-service modes of operationas long as the owners
particular mode of operation makes the creation of dangerous conditions
reasonably foreseeable, the approach should apply.136
Regardless of whether the language in Sheehan limits the approach to
self-service businesses, the reasons the SJC cited for adopting the approach
apply equally to any mode of operation that makes the creation of
dangerous conditions reasonably foreseeable. 137 In adopting the approach,
the SJC reasoned that it is unjust to saddle the plaintiff with the burden of
isolating the precise failure that caused an injury, particularly where a
plaintiffs injury results from a foreseeable risk of harm stemming from an
owners mode of operation.138 Whether the owners mode of operation is
fully self-service, like a modern grocery store, or not fully self-service, such
as a bar that allows patrons to bring drinks onto a dance floor 139 or a fastfood restaurant,140 it is equally unfair to saddle the plaintiff with the burden
of proving notice and isolating the precise failure.141 In each situation, the
creation of dangerous conditions is reasonably foreseeable,142 and the
injured customer may not be able to conduct an immediate investigation
or determine the exact origins of the accident, whereas the store is readily
135 Id. (quoting Chiara v. Frys Food Stores of Ariz., Inc., 733 P.2d 283, 285 (1987))
(emphasis added); see also id. at 1286 ([T]he trier of fact must determine whether the owner
could reasonably foresee or anticipate that a foreseeable risk stemming from the owners
mode of operation could occur.).
136
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143
145 See Sheehan, 863 N.E.2d at 128687 ([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 owners chosen mode of
operation, and the owner took inadequate steps to forestall resulting injuries.) (emphasis
added); see also FGA, Inc. v. Giglio, 278 P.3d 490, 497 (Nev. 2012) (declining to extend the
mode-of-operation approach to a sit-down restaurant because the owners have not created
the increased risk of a potentially hazardous condition by having their customers perform
tasks that are traditionally carried out by employees). Contra Iwai v. State, 915 P.2d 1089,
1096 (Wash. 1996) (plurality opinion) (arguing that the mode-of-operation approach should
apply to any situation where the nature of the owners business makes the creation of
dangerous conditions reasonably foreseeable).
146
147
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Further, one of the SJCs main justifications for adopting the approach
is that customers generally will be less careful than store owners and
employees in avoiding dangerous conditions.148 It is therefore reasonable
for store owners to exercise a higher degree of care in such
circumstances.149 Whether the business at issue is a self-service
supermarket, fast-food restaurant, or nightclub allowing patrons to bring
drinks onto a dance floor, there is a reasonable likelihood that customers
will be less careful than the store owner in preventing the creation of
hazardous conditions.150 As a result, it is consistent with the rationale
behind the approach to apply it to all situations where the owners mode of
operation makes the creation of dangerous conditions by third parties
reasonably foreseeable, not just those where the business employs a selfservice mode of operation.151 This would also relieve courts of determining
whether a business is self-service (not always a simple task)152 and allow
the approach to apply to businesses that are not fully self-service but
nonetheless require or allow patrons to engage in activities that create a
risk of harm to others.153
The mode-of-operation approach also should only extend beyond the
self-service supermarket context where the owner employs a particular or
unique mode of operation that makes the creation of dangerous conditions
that the mode-of-operation approach applies to any dangerous condition and noting that it
does not extend to the general rule that an owner must have actual or constructive notice of a
dangerous condition).
148
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154
See Sheehan, 863 N.E.2d at 128586 (noting that it is proof of a particular mode of
operation that relieves the plaintiff of the burden of proving notice); Mills, 2012 WL 6928121,
at *12 (applying the mode-of-operation approach to a slip-and-fall in a movie theatre because
a movie theatre is a unique venue).
155 See, e.g., Mills, 2012 WL 6928121, at *12 (allowing customers to transport food and
drinks to their movie seats); see also Marcione, 2010 WL 2697595, at *1, *3 (allowing customers
to transport food on trays to and from their table); FGA, Inc. v. Giglio, 278 P.3d 490, 497 (Nev.
2012).
156 See Sarkisian, 2012 Mass. App. Div. at 192 n.2 (allowing patrons to bring drinks onto a
dance floor); Mills, 2012 WL 6928121, at *12 (allowing patrons to purchase food and drinks
and bring them into a dark movie theatre); Vincequere v. L.J.B. & Assocs., No.
WOCV072504A, 2009 WL 3084254, at *12 (Mass. Super. Aug. 13, 2009) (placing strings of
Mardi Gras beads on tables in a nightclub).
157 See, e.g., Tavernese v. Shaws Supermarkets, Inc., No. 07-P-1829, 2008 WL 2726318, at *1
(Mass. App. Ct. July 15, 2008) (unpublished table decision).
158
Id.
Id.
160 Id.
161 See Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 1286 (Mass. 2007).
159
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162
164
167
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172 See id. Subsequent to the decision in Owens, the Florida Legislature overruled its
holding, passing legislation shifting the burden of proof back to the plaintiff and reinstating
the notice requirement. Gagnon & Peretti, supra note 88, at 23.
173
See Jasko v. F.W. Woolworth Co., 494 P.2d 839, 840 (Colo. 1972).
Id.
175 Id.
176 Id.
177 Id.
178 Id.
179 See Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 260 (Fla. 2002) (The
mode of operation theory is not a new principle of law and is not unique to a particular
business.). See Jasko, 494 P.2d at 84041; Wells v. Palm Beach Kennel Club, 35 So. 2d 720, 720
21 (Fla. 1948).
174
180 See Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 1286 (Mass. 2007); Iwai
v. State, 915 P.2d 1089, 1097 (Wash. 1996) (plurality opinion).
181
770
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182
189
190
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191
See Sheehan, 863 N.E.2d at 1284, 1286 (explaining the burden-shifting approach and
noting that the mode-of-operation approach does not subject owners to strict liability because
it still places the burden of proving negligence on the plaintiff).
192
196
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199 See Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *3 (D. R.I. 2010); cf. Sheehan,
863 N.E.2d at 1284.
200 See Robert J. Carroll, Note, Supermarket Liability: Problems in Proving the Slip-and-Fall Case
in Florida, 18 U. FLA. L. REV. 440, 44344 (1965) (discussing the almost insurmountable burdens
that plaintiffs in slip-and-fall cases face, including the lack of disinterested witnesses and the
fact that the defendants employees are likely to have the most relevant information but are
reluctant to testify as to the existence of a dangerous condition).
201 See Iwai v. State, 915 P.2d 1089, 1097 (Wash. 1996) (plurality opinion); see, e.g., Sarkisian
v. Concept Rests., 2012 Mass. App. Div. 191, 19192 & n.2 (2012).
202 See, e.g., Sarkisian, 2012 Mass. App. Div. at 19192 (upholding dismissal because mode of
operation does not apply); Vincequere v. L.J.B. & Assoc., No. WOCV072504A, 2009 WL
3084254, at *12 (Mass. Super. Aug. 13, 2009) (holding that the mode-of-operation approach
applies and denying the defendants summary judgment motion despite the lack of evidence
of notice); Marcione, 2010 WL 2697595, at *3 (applying the mode-of-operation approach and
denying the defendants motion to dismiss).
203
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205
206
2008).
207
Id.
See Sheehan, 863 N.E.2d at 1286.
209 See id. at 128687.
210 See Ravech, supra note 116, at 91. The owner could not, however, argue that the plaintiff
assumed the risk of sustaining harm because assumption of the risk has been abolished as a
defense in Massachusetts. See MASS. GEN. LAWS ch. 231, 85 (2009).
208
211
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CONCLUSION
The mode-of-operation approach recognizes the commonsense notion
that when business owners operate their businesses in such a way that
makes the creation of dangerous conditions reasonably foreseeable, it is
unfair to permit them to escape liability simply because the plaintiff cannot
prove notice of the specific condition which caused the harm. Failing to
recognize this concept both permits and encourages business owners to do
little or nothing to remedy the real risks that their businesses pose to
customers. The SJC recognized that adopting this approach makes sense in
the context of self-service supermarkets, for the practice of allowing
customers to pick out and sample groceries creates a foreseeable risk that
groceries will end up on the floor. Yet there are many other situations that
are not self-service in the traditional sense of the term, but pose an equally
foreseeable risk that third parties will create dangerous conditions. Such
situations may include, but are not limited to, a nightclub that permits
patrons to bring drinks onto a crowded dance floor; a fast-food restaurant
that permits customers to carry their food to and from their tables; a
racetrack that sells bottled drinks but does not provide trash receptacles; a
215 See Costa, 809 N.E.2d at 109293 (attending a baseball game); Toubiana, 520 N.E.2d at
1310 (sticking a board through the ceiling of an elevator); Lyon, 678 N.E.2d at 1310 (working
on a roof).
216
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pizza counter that does not provide tables for its customers; or a movie
theatre that sells popcorn, drinks, and other snacks and allows patrons to
bring them into a dark theatre. In all of these circumstances, the defendant
places invitees in situations where they are likely to create dangerous
conditions that pose a real risk of harm to other invitees.
As the Colorado Supreme Court once stated: The basic notice
requirement springs from the thought that a dangerous condition, when it
occurs, is somewhat out of the ordinary . . . . However, when the operating
methods of a proprietor are such that dangerous conditions are continuous
or easily foreseeable, the logical basis for the notice requirement
dissolves.220 Because the rationale behind the mode-of-operation approach
logically extends to all situations in which the defendants specific mode of
operation makes the creation of dangerous conditions by third parties
reasonably foreseeable, the Massachusetts courts should not arbitrarily
restrict the approach to the self-service context.
220
Jasko v. F.W. Woolworth Co., 494 P.2d 839, 840 (Colo. 1972).