Sheehan v. Roche Bros. Supermarkets, Inc.

• Citation: 448 Mass. 780,863 N.E.2d 1276
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 17 April 2007
• Parties: Francis SHEEHAN & another<SMALL><SUP>1</SUP></SMALL> v. ROCHE BROTHERS SUPERMARKETS, INC., & others.<SMALL><SUP>2</SUP></SMALL>

863 N.E.2d 1276

448 Mass. 780

Francis SHEEHAN & another¹ v. ROCHE BROTHERS SUPERMARKETS, INC., & others.²

Supreme Judicial Court of Massachusetts, Norfolk.

Argued December 6, 2006.

Decided April 17, 2007.

Stephen M. Born & William F. Spallina for the plaintiffs.

H. Charles Hambelton, Burlington, for Roche Brothers Supermarkets, Inc.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

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, 571 N.E.2d 357 (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.

In December, 2003, the plaintiff filed a complaint in the Superior Court. The defendant filed a motion for summary judgment, which a Superior Court judge granted, holding that the plaintiff could not prove that the defendant had prior notice of the hazardous condition that caused his fall. To support this conclusion, the judge, relying on Oliveri v. Massachusetts Bay Transp. Auth., 363 Mass. 165, 292 N.E.2d 863 (1973), stated that there was no evidence pertaining to when the grape fell, and the grape's appearance was not indicative that it had been lying on the floor long enough for the defendant to be put on notice of the potential hazard it posed. The plaintiff timely filed a notice of appeal.

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, 292 N.E.2d 863 (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 of its presence; or the substance, matter, or item had been on the floor so long that the store operator should have been aware of the condition. See S.H. Kress & Co. v. Thompson, 267 Ala. 566, 569, 103 So.2d 171 (1957); Maans v. Giant of Md., LLC, 161 Md.App. 620, 639, 871 A.2d 627 (2005); Barone v. Christmas Tree Shop, 767 A.2d 66, 68 (R.I.2001). A number of jurisdictions continue to follow the traditional premises liability approach, and some of these jurisdictions have declined the invitation to adopt more modern approaches. See Maans v. Giant of Md., LLC, supra; Ortega v. Kmart Corp., 26 Cal.4th 1200, 114 Cal.Rptr.2d 470, 36 P.3d 11 (2001).³

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 avoiding the risk." Mounsey v. Ellard, 363 Mass. 693, 708, 297 N.E.2d 43 (1973). However, the law has afforded store owners a reasonable opportunity to discover and correct any hazards before liability attaches. See Barry v. Beverly Enters.-Mass., Inc., 418 Mass. 590, 593, 638 N.E.2d 26 (1994); Gilhooley v. Star Mkt. Co., 400 Mass. 205, 207-208, 508 N.E.2d 609 (1987); Oliveri v. Massachusetts Bay Transp. Auth., supra at 166, 292 N.E.2d 863. This court has thus held that premises liability attaches only if a store owner has actual or constructive notice of the existence of the dangerous condition, sufficient to allow time for the owner to remedy the condition. Gallagher v. Stop & Shop, Inc., 332 Mass. 560, 563, 126 N.E.2d 190 (1955). See Toubiana v. Priestly, 402 Mass. 84, 87-88, 520 N.E.2d 1307 (1988). In determining whether an owner has actual or constructive notice in slip and fall cases involving vegetable or fruit matter, an emphasis has been placed on the physical characteristics of the substance to determine how long it had been left on the floor. See Anjou v. Boston Elevated Ry., 208 Mass. 273, 94 N.E. 386 (1911). In Oliveri v. Massachusetts Bay Transp. Auth., supra at 170-171, 292 N.E.2d 863, for example, even though the plaintiff's fall was caused by a sticky, hard substance located on a step in a stairway, this court determined that there was insufficient evidence substantiating how long the foreign substance had been on the stair.

2. Modern trends in premises liability. Other jurisdictions have modified premises liability laws to accommodate modern 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, 636 P.2d 1229 (1981); Tom v. S.S. Kresge Co., 130 Ariz. 30, 32, 633 P.2d 439 (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, 3 Cal.Rptr.3d 813 (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 and vigilant as a store owner because customers are not focused on the owner's concern of keeping items off the floor to avoid potential foreseeable risks of harm to other patrons. See generally Golba v. Kohl's Dep't Store, Inc., 585 N.E.2d 14, 15 (Ind.Ct.App.1992). Additionally, customers often focus on displayed items that are arranged specifically to attract their attention, often making them unaware of what might be on the floor. Id.

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.⁴

a. Mode of operation approach. One variation to the traditional premises liability approach is called the mode of operation approach.⁵ This approach focuses on "the nature of the defendant's business [that] gives rise to a substantial risk of injury to customers from slip and fall accidents." Safeway Stores, Inc. v. Smith, supra at 258. This approach also considers whether "the plaintiff's injury was...