Is the Mode of Operation Rule in Massachusetts Limited to Self-Service Businesses?

There are many circumstances in modern life where a dangerous condition can develop through the interaction of people and businesses. When a person is injured as a result, the courts are continually called upon to decide whether the business is responsible for the accident. In 2007, in the case of Sheehan v. Roche Bros. Supermarkets, the Supreme Judicial Court adopted the mode of operation rule in Massachusetts whereby a person injured in a slip and fall accident could satisfy the requirement that the business owner or employees had actual or constructive notice of a dangerous condition by establishing that the injury was the result of a “reasonably foreseeable dangerous condition on the owner’s premises that is related to the owner’s self-service mode of operation.” In that case, the plaintiff had slipped on a grape in the produce aisle of a grocery store that openly displayed merchandise for customers to select and purchase.

Since the 2007 decision, plaintiffs have attempted to extend the mode of operation rule to contexts beyond self-service establishments, focusing on the concept of foreseeablity and arguing that as long as the dangerous condition is reasonably foreseeable, the business should guard against the risk and be liable for resulting injuries. However, Massachusetts courts, focusing on the self-service context ofSheehan, have been reluctant to expand the holding of the case.

In one recent case, a bachelorette party attendee slipped on a small puddle of liquid on the floor of the restaurant and broke her leg. Relying on Sheehan, the injured plaintiff argued that the restaurant was liable because its chosen mode of operation made it reasonably foreseeable that drinks would be spilled on the floor of the defendant’s club, creating a dangerous condition. In deciding that the mode of operation rule did not apply to the case, the Appeals Court noted that the SJC has not directly addressed the mode of operation rule since its adoption, stating “we hesitate to expand or refine the limited and specific holding in Sheehan without further direction from the Supreme Judicial Court.”

The Appeals Court also reviewed the evolution of the mode of operation rule in other states since 2007, noting a trend towards limiting its application. Although the Appeals Court observed that in at least two cases since Sheehan, the Superior Court in Massachusetts had allowed the mode of operation approach in other contexts – one involving a movie theater and another where a nightclub had placed Mardi Gras beads on tables during an event – the court determined that because the defendant nightclub in the case before it was not a self-service establishment, the nightclub could not be held liable under the mode of operation rule. However, with the limits of the rule remaining unclear, and until the SJC revisits the question, plaintiffs will likely continue to attempt to extend the rule to comparable situations where it arguably could apply.