Mode of Operations
Massachusetts has long worked under a traditional constructive notice test on slip and fall cases involving Commercial Premises like a supermarket. That is, does the defendant know of the condition or did they have a reasonable opportunity to know and correct the condition.
In 2007 Massachusetts developed a “Mode of Operations” test to apply to a slip and fall accident at a supermarket self service section. Under the mode of operation the injured party must show that their injury was reasonably foreseeable based upon the supermarket self service mode of operation. If the plaintiff can prove the defendant failed to take reasonable measures involved with the self-service mode of operation than liability may rest with the supermarket.
The case [Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007)] Under Sheehan rather than prove constructive knowledge, if the plaintiff can show that the injury was related to the premises owner self service mode of operation and the owner had failed to take reasonable measures to maintain that self service operation, liability may rest on the defendant. The mode of operation test arguably eliminates the necessity to prove the defendant was on actually or constructive notice of the defective condition. It arguably was sufficient to show that the defendant/owner business posed a reasonable or foreseeable risk of harm to its patrons failure to maintain a mode of operation, their failure.
Recently in the case of Sarkisian v. Concept Restaurant, Inc., 2012 WL 5337230 (Mass.App.Div) (The Appellate Division of the District Court) looked at a case that would expand the mode of operations test. The Sarkisian case involves a spilled drink at a Boston night club that a patron slipped on. In deciding the mode of operation did not apply in that situation, the court decided that the nature of the service [self service, i.e., a salad bar at a supermarket] and not the category of the claim [i.e., slip and fall on a spill at a premises] will determine whether the mode of operation test would be applied. Since the night club was not self service the mode of operation was not applied. At some point the court’s could explain the mode of operation test beyond the self service operation to other slip and fall situations such as movie theaters and sports stadiums.