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Highest Court in Massachusetts Expands “Mode of Operation” Exception in Storeowner Premises Liability Cases

After four years of litigation, on July 28, 2016, in Bowers v. P. Wiles Inc., the Supreme Judicial Court (“SJC”), the highest court in Massachusetts, has finally cleared the way for a jury to hear the case between Linda Bowers and P. Wiles Inc. They have expanded the “mode of operation” exception to premises liability of storeowners, making it easier for plaintiffs to prove that storeowners are liable for the injuries caused by the negligence of other customers.

In December of 2011, the plaintiff, Linda Bowers, fractured her hip when she slipped on a wet river stone on the walkway leading to an Agway garden store in Cape Cod. Agway is owned by P. Wiles Inc. Ms. Bowers sued P. Wiles Inc. for negligence, claiming that Agway knew or should have known that other patrons could dislodge stones, creating a fall risk for customers. Ms. Bowers alleges that Agway did not take reasonable steps to prevent customers from tripping and injuring themselves on these stones. After filing her complaint, P. Wiles moved for summary judgment claiming that Ms. Bowers did not have sufficient evidence to show that Agway had actual or constructive knowledge that the stone was there. In fact, Ms. Bowers had admitted that she did not have evidence to show whether the stone was there long enough for Agway to remedy the situation. 

Under the traditional theory of premises liability in Massachusetts, to find a retail store liable the plaintiff needs to show that the store: (1) knew of, or, by exercise of reasonable care would have discovered, the dangerous condition; (2) the condition created an unreasonable risk of harm; (3) the store could not have expected the plaintiff to discover or protect herself against the potential harm; and (4) the store failed to exercise reasonable care to protect the plaintiff. Specifically, the plaintiff needs to show that the defendant had actual or constructive notice of the condition, which is a very difficult standard to meet.

After allowing the defendant’s motion for further appellate review, the SJC determined that Ms. Bowers’s case could fall under an exception to the notice requirement, known as the “mode of operation.” The mode of operation exception relieves the plaintiff of having to show actual or constructive knowledge and instead requires her to show that the storeowner should have anticipated that their business choice would foreseeably create a recurring hazardous situation. While this standard is often considered more favorable to plaintiffs than the traditional theory premises liability, the plaintiff still has to point to a specific “mode of operation” and show that the defendant’s steps to remedy the hazard was not enough. Furthermore, “mode of operation” is a fact-issue, meaning that the jury decides whether the plaintiff has enough facts to prove storeowner liability.

In doing so, the SJC permitted Ms. Bowers’s case to move forward to trial because there was sufficient evidence that Agway’s choice to use gravel instead of grass could be a “mode of operation” that foreseeably created a tripping hazard for the patrons. Agway also admitted that they had an informal policy to inspect the walkways for dislodged stones, showing that they did anticipate that the gravel area could create a potential tripping hazard.

While Ms. Bowers can finally have her day at court, this landmark decision will likely have wider implications for other slip and fall cases in the future. A win for plaintiffs in personal injury cases, now plaintiffs can hold storeowners accountable for business choices that pose slip and fall risks without the extraordinary burden of proving a storeowner’s actual or constructive knowledge of the specific hazardous condition. Instead by pointing to a specific business choice and showing foreseeable risk, plaintiffs can survive the initial hurdles before trial. And because juries are unpredictable, premises liability cases that fit within the “mode of operation” exception will be more likely to settle.

If you or a loved one has been injured in a slip and fall accident, you may be entitled to compensation.  Contact the experienced Boston personal injury lawyers at Bellotti Law Group, P.C. today at 617-225-2100 for a free consultation.