32 N.E.3d 854
Mass.2015Background
- Plaintiff Angela Sarkisian slipped on a wet dance floor at a Boston nightclub owned by Concept Restaurants and suffered fractured fibula.
- The club had two bars located on the dance floor serving drinks in plastic cups; patrons were permitted to dance while holding drinks.
- Club conditions: crowded dance floor, dim/strobe lighting, a single route (stairs) between dance floor and lounge, and staff (security, barbacks, manager) with general responsibility for keeping the floor clear.
- Manager admitted in deposition that "spills on the dance floor are part of the business."
- Defendant moved for summary judgment arguing the plaintiff could not prove actual or constructive notice of the hazardous condition; lower courts granted and affirmed.
- The Massachusetts Supreme Judicial Court reversed, holding the "mode of operation" approach applies on these facts and summary judgment was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the "mode of operation" doctrine applies outside self-service stores | Sarkisian: doctrine applies where an owner's operation foreseeably creates recurring unsafe conditions (here, bars on dance floor serving drinks in cups) | Concept: doctrine should be limited to self-service contexts; alternative operations (e.g., nightclubs) should be excluded | Court: doctrine not limited to self-service; applies where operation foreseeably invites recurring third-party-created hazards |
| Whether nightclub’s mode of operation put it on notice of unsafe condition without proof of actual/constructive notice | Sarkisian: sale of drinks in cups on a crowded, dim dance floor foreseeably causes recurring spills and thus satisfies notice under mode-of-operation | Concept: serving drinks and patrons moving about is common; imposing doctrine would create near-strict liability for many businesses | Court: reasonable foreseeability here (cups, dancing, dim/strobe lights, congestion, pathway) meant owner had notice of inherent risks; jury must decide reasonableness of precautions |
| Whether the case is governed by traditional notice requirement or mode-of-operation | Sarkisian: traditional notice rule unfairly burdens plaintiffs where evidence of notice is more accessible to defendant; mode-of-operation refines notice element | Concept: traditional rule should control; mode-of-operation would be unbounded and lead to unjust results | Court: mode-of-operation refines notice in a narrow subset when recurring hazards are tied to a business’s mode of operation; it does not abolish plaintiff’s burden to prove lack of reasonable care |
| Whether summary judgment was appropriate | Sarkisian: genuine issues of material fact exist (regularity of spills, foreseeability, reasonableness of defendant’s precautions) | Concept: no evidence of regular spillage or causal nexus to plaintiff’s fall | Court: factual disputes (including manager’s admission) preclude summary judgment; case remanded for further proceedings |
Key Cases Cited
- Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780 (2007) (adopted mode-of-operation approach to refine notice element in slip-and-fall cases)
- Konesky v. Post Road Entertainment, 144 Conn. App. 128 (2013) (applied traditional notice where employees, not patrons, caused wet condition; cautioned against overbroad mode-of-operation application)
- Chiara v. Fry's Food Stores of Ariz., Inc., 152 Ariz. 398 (1987) (discussed limits to mode-of-operation to avoid placing every conceivable patron-caused hazard before a jury)
- Papadopoulos v. Target Corp., 457 Mass. 368 (2010) (landowner cannot leave hazardous conditions when visitor reasonably expected to traverse them)
- Leary v. Jordan Marsh Co., 322 Mass. 309 (1948) (discussed inference issues where only localized wet spot evidence exists)