Sarkisian v. Concept Rests., Inc.

• Decision Date: 23 June 2015
• Docket Number: SJC–11786.
• Citation: 471 Mass. 679,32 N.E.3d 854
• Parties: Angela SARKISIAN v. CONCEPT RESTAURANTS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

471 Mass. 679

32 N.E.3d 854

Angela SARKISIAN

v.CONCEPT RESTAURANTS, INC.¹

SJC–11786.

Supreme Judicial Court of Massachusetts, Worcester.

Submitted March 5, 2015.

Decided June 23, 2015.

Karen L. Stern, Worcester, for the plaintiff.

Richard L. Neumeier, Boston, for the defendant.

Charlotte E. Glinka, Taunton, Michael C. Najjar, Lowell, & Thomas R. Murphy, Salem, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.

John F. Brosnan, Boston, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

CORDY, J.

In this case we decide whether the “mode of operation” approach to premises liability, adopted by this court in

Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788, 863 N.E.2d 1276 (2007), applies to slip-and-fall incidents occurring outside of the context of self-service establishments. Traditionally, a plaintiff asserting premises liability has been required to show that the owner of the premises had actual or constructive notice of an unsafe condition that gave rise to an injury for which compensation is sought. See id. at 782–783, 863 N.E.2d 1276. Under the mode of operation approach, however, the plaintiff satisfies the notice requirement by showing that the injury was attributable to a reasonably foreseeable unsafe condition related to the owner's chosen mode of operation. See id. at 786, 863 N.E.2d 1276.

The plaintiff, Angela Sarkisian, broke her leg after slipping and falling on a wet dance floor at a nightclub owned by the defendant, Concept Restaurants, Inc. A judge in the District Court granted summary judgment in favor of the defendant based on the plaintiff's inability to show that the defendant had actual or constructive notice of the unsafe condition that caused her injury. We conclude that, on the facts presented by this case, the mode of operation approach applies and summary judgment granted to the defendant must be reversed.²

1. Background. We recite the material facts in the light most favorable to the plaintiff, the party who opposed the motion for summary judgment. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). The defendant operated a nightclub in Boston. The nightclub was licensed to hold 574 patrons and had a wooden dance floor measuring approximately fifty feet in length. On the dance floor itself sat two bars—one fifty-feet long and the other fifteen-feet long—from which patrons could purchase alcoholic and nonalcoholic beverages served in plastic cups. Patrons were permitted to consume their beverages on the dance floor or, alternatively, in a lounge area, which was accessible by a set of stairs at the rear of the dance floor.

On August 22, 2009, at around 9:45 p.m. , the plaintiff arrived at the nightclub with a group of friends. A disc jockey was playing music, and the dance floor was crowded with dancing patrons, many of whom held drinks as they danced. The nightclub's dim lighting was accented by strobe lights that flashed on the dancing patrons. The nightclub was staffed with eight security guards, three barbacks, and a manager, each of whom was generally responsible for ensuring that the dance floor remained free of

debris, notwithstanding the absence of any written policies to that effect.

The plaintiff and her friends danced for several hours without noticing any spilled liquids on the dance floor. At around 1:30 a.m. , the plaintiff traveled up the stairs to the lounge area in search of a friend. Unable to locate her friend, she traveled back down the stairs less than one minute later. On returning to the dance floor, she stepped onto a wet surface, slipped, and fell. As a result of the fall, the plaintiff suffered two fractures to her right fibula and severe bruising.

The plaintiff filed a complaint in the District Court, seeking damages arising from the defendant's negligence. The defendant moved for summary judgment, arguing that the plaintiff failed to show that the defendant had actual or constructive notice of the dangerous condition and, thus, failed as a matter of law to carry her burden under the “traditional” approach to premises liability. The judge allowed the motion. The plaintiff appealed on the ground that the “mode of operation” approach to premises liability—which alleviates the plaintiff's burden of proving notice—supplied the proper legal standard. Panels of the Appellate Division of the District Court and the Appeals Court affirmed. We granted the plaintiff's application for further appellate review.³

2. Discussion. a. Standard of review. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991) ; Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). “A nonmoving party's failure to establish an essential element of her claim ‘renders all other facts immaterial’ and mandates summary judgment in favor of the moving party.”

Roman v. Trustees of Tufts College, 461 Mass. 707, 711, 964 N.E.2d 331 (2012), quoting Kourouvacilis, supra at 711, 575 N.E.2d 734.

b. Scope of mode of operation approach. As a general rule, Massachusetts has adhered to the traditional approach to premises liability. That approach, as set forth in the Restatement (Second) of Torts § 343 (1965), provides that “[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.” Where the condition consists of spillage on the floor of a place of business, the first element is satisfied if the operator of that business “caused [the] substance, matter, or item to be on the floor; the ... operator had actual knowledge of its presence; or the substance, matter, or item had been on the floor so long that the ... operator should have been aware of the condition.” Sheehan, 448 Mass. at 782–783, 863 N.E.2d 1276.

In Sheehan, we acknowledged that there are circumstances in which strict application of the traditional approach's notice requirement will produce unjust results. Id. at 788, 863 N.E.2d 1276. In that case, for example, the plaintiff slipped and fell on a grape in a grocery store. The grapes were packaged in individual bags that were easily opened by hand and, thus, were susceptible to spillage by customers. Id. at 781, 863 N.E.2d 1276. We noted that the evolution of grocery stores from clerk-assisted to self-service operations created new risks 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.” Id. at 784–785, 863 N.E.2d 1276.

Given that the notice inquiry in slip and fall cases is generally a factor of how long the dangerous substance has been on the floor, we concluded that it would be “ ‘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.” Id. at 788, 863 N.E.2d 1276, quoting Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 430, 221 A.2d 513 (1966). Accordingly, we held that the notice requirement would be satisfied where “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.” Sheehan, 448 Mass. at 791, 863 N.E.2d 1276.

Our adoption of the mode of operation approach in Sheehan did not supplant the general requirement that the plaintiff prove notice, nor did it modify in any way the remaining two elements of premises liability set forth in the Restatement (Second) of Torts § 343. Sheehan, 448 Mass. at 792, 863 N.E.2d 1276. Rather, it refined the Restatement's notice requirement in a narrow subset of premises liability cases. The defendant argues that this narrow subset of cases is strictly confined to slip-and-fall incidents occurring in self-service establishments. We disagree.

The principles set forth in the Restatement (Second) of Torts are consistent with the application of the mode of operation approach outside of the context of self-service establishments. The Restatement provides that a possessor of land who holds it open to the public for business purposes has a duty to exercise reasonable care to protect business visitors from harms caused by third parties, e.g., other business visitors. Restatement (Second) of Torts § 344. The comments observe that although a warning will often supply the necessary protection, there are “many situations in which the possessor cannot reasonably assume that a warning will be sufficient.” Id. at § 344 comment d. In such a situation, the landowner is “required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons ... may conduct themselves in a manner which will endanger the safety of the visitor.” Id. These comments reflect fundamental principles of tort liability that transcend the distinction between an errant grape in a supermarket aisle and a spilled beverage on a dance floor. See Sheehan, 448 Mass. at 788, 863 N.E.2d 1276, quoting Restatement (Second) of Torts § 343 comment e (“one entering a store, theatre, office building, or hotel ... is...