448 Mass. 780 | Mass. | 2007
After the plaintiff slipped and fell on a grape in a grocery store owned by the defendant, Roche Brothers Supermarkets, Inc., he filed a complaint seeking damages for the injuries resulting from the defendant’s alleged negligence. A Superior Court judge granted a motion for summary judgment in favor of the defendant, pursuant to Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). In doing so, the judge applied the “traditional approach” to premises liability and ruled that the plaintiff could not establish that the defendant had actual or constructive knowledge of the condition that caused the plaintiff to slip and fall. The plaintiff appealed, and we granted his application for direct appellate review. On appeal, the plaintiff claims that summary judgment was improperly granted and urges this court to follow a more modern trend and adopt a “mode of operation” approach to determine premises liability. Because we conclude that the defendant had notice of the inherent risks associated with the operation of its self-service grocery store, we now adopt the mode of operation approach, and we reverse the judge’s decision and remand the case for further proceedings consistent with this opinion.
Facts and procedural background. Viewing the evidence in the light most favorable to the plaintiff, Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass. R. Civ. P. 56 (c), the facts are as follows. On May 1, 2003, the plaintiff entered a supermarket located in Quincy owned by the defendant. As he was walking through the store, he slipped and fell in the front crossing aisle near the customer service counter. Consequently, the plaintiff suffered severe injuries, including a subdural hematoma, and was hospitalized approximately one month and spent three additional weeks in a rehabilitation facility, incurring substantial medical expenses.
After falling, the plaintiff observed the area where he fell and spotted the pulp of a grape on the floor. The store manager, Thomas Moynihan, testified in a deposition that he also observed the area and noticed a small piece of grape and a small amount of clear liquid next to it. In this particular grocery store, all grapes were packaged in individually sealed bags, easily opened by the hand, and placed in a wicker basket. The grapes were located on a tiered display table, surrounded by mats, in the produce department.
Discussion. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., supra, citing Mass. R. Civ. P. 56 (c). The defendant argues that summary judgment was proper because the plaintiff failed to sustain his burden of proving that the defendant had either constructive or actual notice of the hazardous condition that caused his fall. Oliveri v. Massachusetts Bay Transp. Auth., supra at 166 (plaintiff must prove that foreign substance on floor causing her to slip and fall was there “long enough so that in the exercise of reasonable care the defendant should have discovered and removed it”).
1. The Restatement and traditional premises liability approach. Restatement (Second) of Torts § 343 (1965), states: “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.”
Under the traditional approach to premises liability, the plaintiff is required to prove a grocery store caused a substance, matter, or item to be on the floor; the store operator had actual knowledge
Historically, Massachusetts has also followed the traditional approach governing premises liability. A store owner has been required to maintain its property “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of
2. Modern trends in premises liability. Other jurisdictions have modified premises liability laws to accommodate modem merchandising techniques. The modification of the traditional premises liability approach is, in large part, based on the change in grocery stores from individualized clerk-assisted to self-service operations and focuses on the reasonable foreseeability of a patron’s carelessness in the circumstances, instead of on constructive or actual notice. See Bloom v. Fry’s Food Stores, Inc., 130 Ariz. 447 (1981); Tom v. S.S. Kresge Co., 130 Ariz. 30, 32 (Ct. App. 1981). In a self-service grocery store, merchandise is easily accessible to customers, which results in foreseeable spillage and breakage that customers may encounter while shopping, thus requiring store owners to use a degree of care commensurate with the risks involved. See Moore v. Wal-Mart Stores, Inc., 111 Cal. App. 4th 472, 476 (2003); Safeway Stores, Inc. v. Smith, 658 P.2d 255 (Colo. 1983). Spillage and breakage is attributable to customers who generally may not be as careful
Although these jurisdictions have modified the plaintiff’s burden of proof in slip and fall cases, they differ as to the extent of their modification of the traditional approach. There appear to be at least two other premises liability approaches, i.e., “mode of operation” and “burden shifting.” There are also several jurisdictions that utilize a combination of the three major approaches.
a. Mode of operation approach. One variation to the traditional premises liability approach is called the mode of operation approach.
Under the mode of operation approach, the plaintiff’s burden to prove notice is not eliminated. Instead, the plaintiff satisfies the notice requirement if he establishes that an injury was attributable to a reasonably foreseeable dangerous condition on the owner’s premises that is related to the owner’s self-service mode of operation. This is based on the premise that “the owner of such a self-service establishment has actual notice that his mode of operation creates certain risks of harm to his customers. Since a self-service operation involves the reasonable probability that these risks will occur, these risks are foreseeable.” Pimentel v. Roundup Co., supra at 43. However, the plaintiff, under this approach, is still required to prove that the defendant failed to take reasonable measures commensurate with the risks involved with self-service mode of operation to prevent injury to invitees and “bears the burden of persuading the jury that the
b. Burden-shifting approach. Under an approach often called the burden-shifting approach, several jurisdictions
3. Adoption of mode of operation approach. In Gilhooley v. Star Mkt. Co., 400 Mass. 205 (1987), this court determined that the plaintiff, who slipped and fell on a green pepper on the floor, failed to establish that the defendant did not comply with industry standards regarding adequate monitoring or that the defendant’s stacking of peppers in a tiered fashion was either “sloppy or precarious.” Id. at 208. However, in that case, this court also stated that “the keeper of a grocery store may be
Of the two modem approaches, the mode of operation and burden-shifting approaches, the mode of operation approach is in our view the more preferable, and we now adopt it. The language of the Restatement (Second) of Torts § 343 (1965) supports our conclusion as it requires store owners to make far greater preparations to ensure the safety of their invitees. Specifically, comment e states: “[0]ne entering a store, theatre, office building, or hotel, is entitled to expect that his host will make far greater preparations to secure the safety of his patrons than a householder will make for his social or even his business visitors.” Id. at 217.
We also find persuasive the idea that when a plaintiff is injured on the defendant’s premises, it is “unjust to saddle the plaintiff with the burden of isolating the precise failure” that caused an injury, particularly where a plaintiff’s injury results from a foreseeable risk of harm stemming from an owner’s mode of operation. Wollerman v. Grand Union Stores, Inc., supra at 430. See Chiara v. Fry’s Food Stores of Ariz., Inc., supra at 400
Some jurisdictions, such as Maine, have critiqued the mode of operation approach and have suggested that it imposes strict liability on a defendant for a plaintiff’s injuries on its premises and makes defendants “absolute insurers” for the safety of its customers. See Dumont v. Shaw’s Supermarkets, Inc., 664 A.2d 846, 849 n.1 (Me. 1995). Unlike other jurisdictions that follow the traditional approach, Maine has adopted a recurrent risk approach, holding that “[i]f the owner of the premises has taken precautions reasonably necessary to protect its customers, then the owner is not liable to customers injured on the premises.” Id. However, an owner that is “aware of the existence of a recurrent condition that poses a potential danger to invitees may not ignore that knowledge and fail reasonably to respond to the foreseeable danger of the likelihood of a recurrence of the condition.” Id. at 849. See Hetzel v. Jewel Cos., 457 F.2d 527, 530 (7th Cir. 1972) (under Indiana law, store had constructive notice of recurrent dangerous condition); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 251 (1993) (summary judgment reversed based on existence of material issue of fact whether the defendant had knowledge of “chronic hazard” of debris on floor in produce department that could warrant a finding that the defendant had knowledge of the hazardous condition). Arkansas has similarly held that “where the slippery condition is not the result of an isolated incident but is instead a recurring one, the traditional slip-and-fall analysis is inapplicable, and the question is simply whether the business owner used ordinary care to keep his premises free from dangerous conditions likely to cause injury to invitees.” Brookshires Grocery Co. v. Pierce, 71 Ark. App. 203, 205 (2000).
Although these jurisdictions have declined the invitation to adopt the mode of operation approach, Arkansas, Maine, and Nevada nevertheless determine whether store owners will be li
Adopting this new approach to premises liability does not make the owner of a self-service or modem grocery store an insurer against all accidents, but instead removes the burden on the victim of a slip and fall to prove that the owner or the owner’s employees had actual or constructive notice of the dangerous condition or to prove the exact failure that caused the accident. See Chiara v. Fry’s Food Stores of Ariz., Inc., supra at 400-401. Under the mode of operation approach, a “plaintiff’s proof of a particular mode-of-operation simply substitutes for the traditional elements of a prima facie case — the existence of a dangerous condition and notice of a dangerous condition.” Id. at 400. Adoption of this approach would not hold owners strictly liable to all plaintiffs involved in slip-and-fall incidents on their premises, but would only make an owner liable if the owner could reasonably foresee that a dangerous condition exists and failed to take adequate steps to forestall resulting injuries. A plaintiff would still be required to present evidence supporting his or her case and to bear the burden of persuading the trier of fact that the defendant acted unreasonably in the circumstances. Id. at 401.
As such, “it is necessary in determining whether the evidence was sufficient to warrant an inference that the defendant violated its duty of care to consider ‘whether the jury reasonably could have concluded that, in view of all the circumstances, an ordinarily prudent person in the defendant’s position would have taken steps, not taken by the defendant, to prevent the ac
In sum, the adoption of the mode of operation approach will not modify the general rule governing premises liability requiring a plaintiff to prove that an owner had either actual or constructive notice of an unsafe condition on the premises. However, if a plaintiff proves that an unsafe condition on an owner’s premises exists that was reasonably foreseeable, resulting from an owner’s self-service business or mode of operation, and the plaintiff slips as a result of the unsafe condition, the plaintiff will satisfy the notice requirement. See Meek v. WalMart Stores, Inc., 72 Conn. App. 467, 481 (2002); Jackson v. K-Marrt Corp., 251 Kan. 700, 710 (1992). Additionally, a store owner will be liable to a plaintiff injured as a result of a dangerous condition caused by a third party only if the owner could reasonably foresee that the dangerous condition could occur, resulting from the owner’s chosen mode of operation, and the
Conclusion. For the foregoing reasons, we conclude that summary judgment was improperly granted and, given our adoption of the mode of operation approach, the defendant had notice of the inherent risks associated with its chosen mode of operation. We vacate the judge’s decision granting summary judgment in favor of the defendant and remand the case to the Superior Court for further proceedings consistent with this opinion.
So ordered.
The following jurisdictions currently follow the traditional premises liability approach: Alabama, Alaska, California, Delaware, Iowa, Louisiana, Maryland, Michigan, Minnesota, Nebraska, New Hampshire, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Virginia, and West Virginia. See S.H. Kress & Co. v. Thompson, 267 Ala. 566, 569 (1957); Kremer v. Carr’s Food Ctr., Inc., 462 P.2d 747, 749 (Alaska 1969); Ortega v. Kmart Corp., 26 Cal. 4th 1200 (2001); Howard v. Food Fair Stores, New Castle, 57 Del. 471, 480 (1964); Richardson v. Commodore, Inc., 599 N.W.2d 693, 696 (Iowa 1999); Kavlich v. Kramerla, 315 So. 2d 282 (La. 1975), superseded by statute, La. Rev. Stat. Ann. § 9:2800.6 (West 1997); Maans v. Giant of Md., LLC, 161 Md. App. 620, 639 (2005); Whitmore v. Sears, Roebuck & Co., 89 Mich. App. 3, 8, (1979); Norman v. Tradehome Shoe Stores, Inc., 270 Minn. 101, 106 (1965); Herrera v. Fleming Cos., 265 Neb. 118, 122 (2003); Simpson v. Wal-Mart Stores, Inc., 144 N.H. 571, 574 (1999); Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 (1986); Nourse v. Food Lion, Inc., 127 N.C. App. 235, 238 (1997); Johanson v. Nash Finch Co., 216 N.W.2d 271, 275 (N.D. 1974); Anaple v. Standard Oil Co., 162 Ohio St. 537, 541 (1955); Lee v. Meier & Frank Co., 166 Or. 600, 605 (1941); Martino v. Great Atl. & Pac. Tea Co., 419 Pa. 229, 233 (1965); Barone v. Christmas Tree Shop, 767 A.2d 66, 68 (R.I. 2001); Wintersteen v. Food Lion, Inc., 344 S.C. 32, 35 (2001); Ballard v. Happy Jack’s Supper Club, 425 N.W.2d 385, 388 (S.D. 1988); Miracle Mart, Inc. v. Webb, 205 Va. 449, 453 (1964); McDonald v. University of W. Va. Bd. of Trustees, 191 W. Va. 179, 182 (1994).
There are also several jurisdictions, including Arkansas, Maine, and Nevada, that have adopted an exception to the traditional premises liability rule, often referred to as the recurrent risk approach discussed infra. See Brookshires Grocery Co. v. Pierce, 71 Ark. App. 203 (2000); Dumont v. Shaw’s Supermarkets, Inc., 664 A.2d 846, 849 (Me. 1995); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 251 (1993).
The following jurisdictions currently follow hybrid approaches to premises liability: Illinois (combination of traditional and mode of operation), New Jersey (combination of mode of operation and burden shifting), New Mexico (combination of mode of operation and recurring condition), and Oklahoma (combination of mode of operation and burden shifting). See Donoho v. O’Connell’s, Inc., 13 Ill. 2d 113, 118, 124-125 (1958); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966); Mahoney v. J.C. Penney Co., 71 N.M. 224, 259-260 (1962); Lingerfelt v. Winn-Dixie Tex., Inc., 645 P.2d 485, 489 (Okla. 1982).
The following jurisdictions have adopted the mode of operation approach: Arizona, Connecticut, Hawaii, Idaho, Illinois, Indiana, Kansas, Mississippi, Missouri, New Jersey, New Mexico, Oklahoma, Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming. See Chiara v. Fry’s Food Stores of Ariz., Inc., 152 Ariz. 398, 401 (1987); Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 474-481 (2002); Gump v. Walmart Stores, Inc., 93 Haw. 428, 441-444 (Ct. App. 1999), aff’d in part and rev’d in part on other grounds, 93 Haw. 417 (2000); McDonald v. Safeway Stores, Inc., 109 Idaho 305, 308 (1985); Donoho v. O’Connell’s, Inc., 13 Ill. 2d 113, 118, 124-125 (1958); Golba v. Kohl’s Dep’t Store, Inc., 585 N.E.2d 14, 17 (Ind. Ct. App. 1992); Jackson v. K-Mart Corp., 251 Kan. 700, 710 (1992); Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283 (Miss. 1986); Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 782 (Mo. 1989); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966); Mahoney v. J.C. Penney Co., 71 N.M. 244, 259-260 (1962); Lingerfelt v. Winn-Dixie Tex., Inc., 645 P.2d 485, 489 (Okla. 1982); Worsham v. Pilot Oil Corp., 728 S.W.2d 19 (Tenn. Ct. App. 1987); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 298 (Tex. 1983); Canfield v. Albert-
The use of the terms “dangerous” and “hazardous” conditions throughout this opinion refer to conditions that stem from an owner’s mode of operation. These conditions may include, but are not limited to, spilled foreign substances or fallen matter.
The following jurisdictions follow the burden-shifting approach: Colorado, Florida, Georgia, and Kentucky. See Safeway Stores, Inc. v. Smith, 658 P.2d 255, 258 (Colo. 1983); Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331 (Fla. 2001); Davis v. Bruno’s Supermarkets, Inc., 263 Ga. App. 147, 148-149 (2003); Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 436 (Ky. 2003). Although New Jersey and Oklahoma follow the mode of operation approach, both jurisdictions also incorporate principles of the burden-shifting approach. See Wollerman v. Grand Union Stores, Inc., supra at 429-430; Lingerfelt v. Winn-Dixie Tex., Inc., supra.
Generally, a premise hazard is “a condition of the premises or of the store operation that results in an unreasonable risk of harm to customers under the circumstances.” Johnson v. Insurance Co. of N. Am., 360 So. 2d 818, 819 (La. 1978).
The defendant argues that if we adopt the mode of operation approach, we will be adopting a new rule, and thus it requires prospective application only. We disagree. Adoption of the mode of operation approach is not an adoption of a wholly new law, but merely a refinement of the elements of proof in premises liability cases.
As discussed, this court stated in Gilhooley v. Star Mkt. Co., 400 Mass. 205, 208 (1987), that a storekeeper may be held liable to a customer who slips and falls as a result of the storekeeper’s negligent marketing and display of produce. We are now presented with a case where the application of the Gilhooley language is relevant. The Gilhooley case plainly foreshadowed the result we reach today. Cf. McIntyre v. Associates Fin. Sens. Co. of Mass., 367 Mass. 708 (1975). We see no reason why this plaintiff should not receive the full benefits of his efforts in pursuing the mode of operation approach both in the trial court and on appeal and in persuading this court that the mode of operation approach is, indeed, the best approach.