“Mode of Operation” Standard Expanded Again in Massachusetts

The Massachusetts Supreme Judicial Court recently rendered a decision that will undoubtedly impact premises liability cases where the “mode of operation” standard is used to prove negligence. 

In Bowers v. Wile’s, Inc., a patron going into a garden store slipped on a pebble that was on the walkway.  It was determined that the pebble came from a bed of pebbles adjacent to the walkway.  Even though there was no evidence regarding how or when the pebble came to be on the walkway, or that the store knew it was there, the Court nonetheless held that the store could be liable if there was “a particular mode of operation of the self service area that made the reoccurring hazard of stones on the walkway, after customers have walked through the self service area foreseeable…  [i]f a jury were to conclude that [the store’s] maintenance of the gravel area was a mode of operation that created a foreseeable risk that customers would dislodge stones onto the walkway, which, according to its manager, [the store] viewed as a potential tripping hazard, there would be a further question of material fact whether [the store’s] efforts to protect customers from the presence of stones on the walkway were reasonable under the circumstances.”  The Court declined to hold the plaintiff to the traditional standard for premises liability cases, which would have required the plaintiff to establish that the business had actual or constructive notice of the hazard.  Because of this decision, the “mode of operation” standard will now be applied to any case against a retail property owner in which someone coming or going from the establishment slips or trips on something that comes onto the walkway from an adjacent landscaped area.

If you have any questions about this recent decision and how it might affect your business, please contact one of our attorneys.

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