Massachusetts Appeals Court Expands Mode of Operation Approach

In slip and fall injuries, it is incumbent upon the injury victim to establish that the defendant property owner knew or should have known of a dangerous condition existing on its property and that the condition caused the injury victim’s injuries. In 2007, the Massachusetts Supreme Judicial Court adopted the “mode of operation approach” which relieves the injury victim’s need to prove that the defendant owner had actual or constructive notice of a dangerous condition existing on the property so long as the injury victim could establish that the dangerous condition was related to the owner’s self-service mode of operation. In the case Bowers v. P. Wile’s, Inc., the Massachusetts appeals court expanded the mode of operation approach to a display units outside of a store.

In 2011, the injury victim visited the defendant’s store on Cape Cod. Outside of the store, the defendant had a birdbath display in a gravel area. The injury victim was walking towards the display and slipped on a stone on the sidewalk which was moved there by some unknown customer or employee, causing the injury victim to fracture her hip and undergo two surgeries to repair her injuries.

The trial court dismissed the plaintiff’s lawsuit, claiming that her injuries were not the result of the defendant store’s self-service operations and did not result from a breakage or spillage. On appeal, the Massachusetts Appeal Court overturned the trial court’s dismissal. In reaching its conclusion, the Appeals Court explained that the mode of operation approach is not limited to spillage or breakage of products offered for sale. Instead, the Appeals Court found that the rationale for the mode of operation approach is to apply in circumstances where the store invites customers to use “self-service” to manipulate merchandise displays, and, therefore, is creating a foreseeable risk that the customers’ handling of merchandise or displays will cause a disruption of the display and create a hazardous condition. As such, the Appeals Court opines that the store owner of a self-service establishment has actual notice that his/her mode of operation creates risk of harm to his/her customers and that injury is foreseeable.

The decision from the Massachusetts Appeals Court goes in depth to explain what an injury victim must establish in order to recover for dangerous conditions contained on the defendant’s property. If you have sustained an injury as a result of a slip and fall on debris left on a floor or walkway, you should consult with an attorney regarding your rights.

Kevin P. Rauseo is a director at Hamblett & Kerrigan P.A. He concentrates his practice in the areas of family and divorce law, Collaborative law, child custody and visitation, child support and alimony, personal injury, insurance defense, slip and fall accidents, automobile and truck accidents, motorcycle accidents, premises liability, dog bites and civil litigation. He is a member of the International Academy of Collaborative Professional and serves on the Professional Development Committee and has previously served on the Public Education Advisory Panel of the Academy. He also is a member of the Collaborative Law Alliance of New Hampshire. AV Preeminent Rated by Martindale-Hubbell. Recipient of the 2014 Nationally Ranked Top 10 Attorney Award from the National Academy of Family Law Attorneys (NAFLA). You can reach Attorney Rauseo atkrauseo@nashualaw.com.