The Kickham Comment - Boston Accident Lawyer Blog
In my previous post on this important topic, I noted how plaintiffs who suffered injuries due to slipping and falling at Massachusetts retail stores, usually had a tough time even getting their cases in front of a jury. This was because store owners could often get the cases dismissed due to the high evidentiary standard that an injured plaintiff would have to meet, in order to prevent the case from being dismissed.
Under the traditional theory of premises liability, someone who was injured because they tripped or slipped and fell at a retail store due to a foreign object or substance being temporarily on the premises, had to prove that the store had either actual knowledge or constructive knowledge of the presence of the object or substance on the premises that caused the plaintiff to fall. If a plaintiff could not demonstrate that the store had actual notice that the dangerous condition existed, the plaintiff would sometimes show “constructive notice” if it could be shown that the dangerous item or condition was present for a long enough period of time that the store management “should have” known about it.
In a victory for such injured people, that obstacle was recently made much less onerous. The Massachusetts SJC recently ruled in a very important case, Bowers vs. P. Wiles, Inc. (SJC No.11923,) that injured persons can prove retail store negligence by employing what is known as a “mode of operation” theory of premises liability, rather than the “traditional theory of premises liability.” This new theory of liability disposes of the need for an injured plaintiff to prove that either A) The store owner actually knew of the item or substance (“defect”) on the premises, or B) That store owner had constructive knowledge of the dangerous item, because it had been there for an unreasonably long time.
Instead, the court expanded its prior recognition that some retail businesses create a foreseeable risk of injury or harm to their patrons – through the actions of third parties – merely by their regular “mode of operation.” In a previous case that introduced the ‘mode of operation” theory of liability, that regular mode of operation was a supermarket’s self-service salad bar. In that case, one or more unidentified patrons (third parties) had either knowingly or unknowingly dropped items like lettuce, olives and salad dressings on the floor adjacent to the salad bar. A customer slipped on the foreign object, fell and was seriously injured. The store moved to dismiss the case on summary judgement, but the SJC ultimately overruled the motion, finding that the store’s very mode of operation in operating a self-service salad bar, created foreseeable hazards that could arise through the actions of third parties (other customers dropping food items on the floor, which created a slip and fall hazard.)
In this most recent case, the plaintiff suffered a broken hip after she fell on a stone from an exterior gravel walkway that had migrated onto a flat walkway, both on the store’s premises. The gravel walkway adjoined a self-service garden area where customers came and went to view and purchase plants and flowers. The store had kept this gravel walkway on its premises for approximately 15 years. The court found that by its mode of operation in keeping that gravel walkway adjacent to a flat walkway leading to the inside of the store, it was foreseeable that a third party (most likely another customer,) could easily track migrant pieces of gravel and stones onto the flat walkway, creating a fall hazard.
Thus, people who slip and fall in a Massachusetts retail store, now have a much fairer chance of having their case heard by a jury, than previously. As a Massachusetts retail store slip & fall attorney, I can assure you: That’s a good thing for Massachusetts supermarket slip & fall injury victims. And it’s a good decision for all of us, because it means that Massachusetts retail stores and supermarkets will now be made a lot safer than previously.