54 N.E.3d 1089
Mass.2016Background
- Plaintiff Linda Bowers slipped on a stone on a concrete walkway outside Agway’s garden store and suffered a displaced right-hip fracture requiring surgery.
- Adjacent to the walkway was a six-foot "gravel area" of river stones used as a self-service display where customers could enter and select gardening items without employee assistance.
- Agway knew stones could be dislodged from the gravel area onto the walkway and had an informal practice of employees checking the walkway intermittently (about every 15 minutes), but no fixed inspection schedule.
- Bowers could not show how long the stone had been on the walkway or that Agway actually placed it there; an employee observed and kicked stones off the walkway immediately after the fall.
- Agway moved for summary judgment arguing traditional premises-liability notice rules require proof of actual or constructive notice of the specific hazard; the trial court granted judgment for Agway; the Appeals Court reversed; the Supreme Judicial Court granted further review.
- The SJC held the mode of operation approach can apply to a gravel self-service display area and remanded, finding genuine issues of material fact on foreseeability and reasonableness of Agway’s precautions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mode of operation doctrine applies to injuries caused by stones migrating from an outdoor self-service gravel display onto an adjacent walkway | Bowers: Agway’s self-service gravel area made dislodged stones a recurring, foreseeable risk tied to its mode of operation, so notice can be proved without showing actual or constructive notice of this specific stone | Agway: Traditional premises-liability rule governs; plaintiff must prove actual or constructive notice of the specific stone, which Bowers cannot do | Mode of operation may apply here; triable issues exist whether the gravel display created a recurring, foreseeable hazard and whether Agway’s inspections were reasonable |
| Whether summary judgment was appropriate given the record | Bowers: Summary judgment improper because factual disputes exist on foreseeability and whether Agway’s inspection practice was sufficient or followed | Agway: No evidence of how long stone was present or that store caused it; under traditional rule summary judgment is appropriate | Summary judgment vacated and case remanded because reasonable juror could find mode-of-operation notice and inadequacy of precautions |
| What showing satisfies notice under mode of operation theory | Bowers: Proof that the business’s chosen operation regularly invites third-party interference creating foreseeable hazardous conditions suffices for notice | Agway: Mode of operation is not applicable; notice must be specific to the hazardous object | Court reiterated that mode of operation removes need to prove notice of the specific object if plaintiff shows a particular, recurring mode of operation made the danger foreseeable |
| Whether mode of operation eliminates other elements of liability | Bowers: Mode of operation satisfies notice requirement so plaintiff need not prove actual/constructive knowledge of that stone | Agway: Even under mode-of-operation approach, plaintiff must still prove defendant acted unreasonably | Court: Mode of operation only addresses notice; plaintiff still must prove the business failed to take reasonable measures; liability is not automatic |
Key Cases Cited
- Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679 (mode of operation doctrine explained and expanded)
- Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780 (adoption of mode of operation approach in self-service contexts)
- Deagle v. Great Atl. & Pac. Tea Co., 343 Mass. 263 (elements for retail premises liability)
- Oliveri v. Massachusetts Bay Transp. Auth., 363 Mass. 165 (constructive notice proof via duration of hazard)
- Gallagher v. Stop & Shop, Inc., 332 Mass. 560 (requirement to show sufficient time for store to discover and remedy hazard)
- G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262 (reasonableness of precautions evaluated by jury)