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14-P-313 Appeals Court
LINDA S. BOWERS vs. P. WILE'S, INC.1
No. 14-P-313.
Middlesex. December 10, 2014. - May 15, 2015.
Present: Kantrowitz, Green, & Sullivan, JJ.
Negligence, Retailer. Notice. Practice, Civil, Summary
judgment.
Civil action commenced in the Superior Court Department on
February 24, 2012.
The case was heard by Paul D. Wilson, J., on a motion for
summary judgment, and a motion to vacate judgment was heard by
him.
David McCormack for the plaintiff.
Joseph T. Black for the defendant.
GREEN, J. In Sheehan v. Roche Bros. Supermarkets, Inc.,
448 Mass. 780, 788 (2007) (Sheehan), the Supreme Judicial Court
adopted the so-called "mode of operation" approach to premises
liability. Under that approach, a plaintiff injured as the
1
Doing business as Agway of Cape Cod.
2
result of a dangerous condition on an owner's property is
relieved of the need to prove that the owner had actual or
constructive notice of the condition if he instead establishes
that the dangerous condition was "related to the owner's self-
service mode of operation." Id. at 786. In the present case, a
judge of the Superior Court allowed the defendant's motion for
summary judgment, based on his view that the mode of operation
approach applies only where the dangerous condition results from
breakage or spillage of items offered for sale.2 We discern no
such limitation in the mode of operation approach described by
the Supreme Judicial Court in Sheehan, supra, or in the
rationale supporting it. We also conclude that the summary
judgment record does not foreclose the prospect that the
plaintiff could succeed, at trial, in proving that the defendant
failed to use reasonable measures to prevent injuries that could
result from the foreseeable dangerous condition. See
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714
(1991). We accordingly reverse the judgment and the order
denying the plaintiff's motion to vacate the judgment, and
remand the matter to the Superior Court for further proceedings.
Background. We review the entry of summary judgment de
novo, construing all facts in favor of the nonmoving party.
2
In so doing, the motion judge appears to have followed a
line of like rulings by other judges of the Superior Court.
3
Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
We summarize the undisputed facts, construed in that manner, as
they appear in the summary judgment record.
On the afternoon of December 28, 2011, the plaintiff rode
with her father to the defendant's store on Cape Cod.3 The
weather was clear, with no precipitation, and the ground was
dry. After getting out of the car, the plaintiff walked on the
"inner side of the sidewalk" toward the store. Before reaching
the store, however, she fell after stepping on a small "river
stone" about three-quarters of an inch in size.4 The stone was
on the sidewalk after having been moved (by some unknown means)
from an adjacent gravel area maintained by the store. The
plaintiff did not see the stone, or any other stones, on the
sidewalk before falling. As a result of her fall, the plaintiff
suffered a "displaced fracture of her right hip that required
two surgical repairs."
At the time of her accident, the plaintiff was looking at a
birdbath on display in the gravel area. She was wearing shoes
called "clogs," and she had had no difficulty with the shoes on
3
As the motion judge observed, the summary judgment record
describes the store's location inconsistently, in both Dennis
and Orleans. The disparity is immaterial.
4
As the motion judge noted, the parties have referred to
the object in question variously as a river stone, rock, or
pebble. We adopt his choice to refer to the object generally as
a river stone and agree with him that the precise label applied
to the object is immaterial.
4
that day or in the past. When she fell, she remained on the
sidewalk and did not fall into the gravel area or strike any of
the merchandise on display.
The plaintiff had visited the store on multiple occasions
since the late 1980's or early 1990's. She had walked on the
same sidewalk before and had seen similar river stones on it,
without encountering difficulty.
The concrete sidewalk on which the plaintiff fell was about
six feet wide and ran between the parking lot and the store, in
front of, and parallel to, the store front. The gravel area,
also about six feet wide, was between the sidewalk and the store
front.
Between the gravel area and the front wall of the store
building was a porch area. The porch floor surface was on the
same plane as the sidewalk and gravel area and was about six
feet wide. The store displays merchandise both within the porch
area and on and around the gravel area, and customers are
allowed to help themselves to products from those areas.
Jessica Wile, a store manager, testified that the store
sells various outdoor products during the winter months,
including pottery, birdbaths, and shovels. The store's cash
registers are located inside and near the store's front doors.
The front doors are the only entrance for customers in the
5
winter months; an alternate entrance through the greenhouse,
also at the front of the store, is closed during the winter.
The store constructed the gravel area about fifteen years
before the accident.5 Prior to the plaintiff's fall, no other
complaints regarding river stones on the sidewalk were brought
to the store’s attention, and no accidents from river stones on
the sidewalk had occurred. However, it was a common occurrence
for customer foot traffic through the gravel area, or
manipulation of merchandise displayed there, to cause river
stones to move from the gravel area onto the sidewalk. When
assisting customers in carrying merchandise to their cars, or
when retrieving shopping carts from the parking lot, store
employees would look to see if river stones were present on the
sidewalk, and would kick any stones back into the gravel area.
However, there was no formal schedule for inspections, and no
policy requiring that inspections occur on a particular basis or
by particular employees.
The store maintained a weekly cleaning list that included
spaces for dates and initials from Wile or an assistant manager
after an employee completed a task. The cleaning list included
tasks such as wiping counters, cleaning doors, and cleaning
5
Wile stated that the store constructed the gravel area of
river stones because of a municipal building department
requirement that the area be permeable for water drainage
purposes.
6
floors. There was no similar list for outside inspections,
including the gravel area.
Five employees, including Wile, were working on the day of
the accident.6 Also among those working on the day of the
accident was an employee named Jason Bowman. In his deposition
he testified that, on an "average day," he went outside the
store about every fifteen minutes, while helping customers, and
inspected the sidewalk for the presence of river stones on those
occasions. According to Wile, Bowman was "at the register with
[Wile]" at the time of the accident. Bowman likewise testified
that he was working the cash register that day, and that
business was "steady." The record furnishes no guidance
whether, or (if at all) how often, Bowman left the register to
inspect the sidewalk for river stones on the day of the
accident.7
After the plaintiff fell, her father went into the store
and asked Bowman to provide assistance. Bowman went outside,
where he found the plaintiff on the ground and initially
attempted to help her get up. After realizing that the
6
During the winter months, when the store was less busy, it
usually had seven to ten employees working daily, according to
Wile. The store consists of a showroom of about 4,000 square
feet, and a warehouse, closed to the public, of about 7,000
square feet.
7
The deposition transcript of Bowman included in the record
presents only excerpts of Bowman's testimony.
7
plaintiff was injured, and recalling that store policy was to
inform a supervisor of an accident, Bowman went back inside the
store to retrieve Wile.8
Wile went outside and spoke with the plaintiff, who stated
that she could not stand and needed help. Wile went back inside
the store and returned with a stool for the plaintiff. Wile
then called 911 from her cellular telephone.
According to Wile, when they were waiting for the ambulance
to arrive, the plaintiff stated that she had stepped on a rock,
started to trip, crossed her leg in an attempt to catch herself,
but then fell on her hip. Wile then returned to the store to
retrieve a notepad on which to write down the plaintiff's name
and information. When she returned, Wile obtained the
plaintiff's contact information and gave the plaintiff her card.
An ambulance then came to transport the plaintiff to the
hospital. Wile "took the [river stone] and taped it onto a
piece of paper and put it in [her] desk drawer." She then "went
out and noted any pebbles [on the sidewalk] and kicked them back
onto the [gravel] area."
Discussion. As we observed in the introduction, in
Sheehan, 448 Mass. at 782-791, the Supreme Judicial Court
adopted the mode of operation approach to premises liability, in
8
Once Bowman retrieved Wile, he remained inside the store.
8
a departure from the "traditional approach."9 The court
introduced the doctrine by observing that it modifies how the
notice requirement of premises liability is met:
"Under the mode of operation approach, the plaintiff's
burden to prove notice is not eliminated. Instead,
the plaintiff satisfies the notice requirement if he
establishes that an injury was attributable to a
reasonably foreseeable dangerous condition on the
owner's premises that is related to the owner's self-
service mode of operation."
Id. at 786.
To explain its decision to adopt the mode of operation
approach, the court observed that modern merchandising
techniques often call for customers to engage in "self-service"
activities (in circumstances where store employees previously
might instead have assisted them). See id. at 784. The use of
self-service operations in turn carries with it the foreseeable
risk that customer carelessness could give rise to spillage and
breakage that could cause dangerous conditions in the store
premises -- in contrast to store employees who generally would
be expected to be more careful and, in any event, act under the
supervisory oversight of their employer. See id. at 784-785.
However, the court was explicit that its rationale was based on
9
Under the traditional approach, a landowner is liable for
injuries caused by dangerous conditions on his property if the
owner knows or should know of an unreasonable risk of harm,
visitors will not discover the danger or protect themselves, and
the landowner fails to exercise reasonable care to protect them.
See Sheehan, supra at 782, quoting from Restatement (Second) of
Torts § 343 (1965).
9
the foreseeable likelihood that hazards could result from the
owner's self-service mode of operation, and that such
"conditions may include, but are not limited to, spilled foreign
substances or fallen matter." Id. at 786 n.6.
In allowing the defendant's motion for summary judgment,
the motion judge suggested that applying the mode of operation
approach to the circumstances of the plaintiff's injury would
constitute an extension of the doctrine beyond the "spillage and
breakage" paradigm involved in Sheehan,10 and our dissenting
colleague presses a similar suggestion. To the contrary,
however, in our view the attempt to limit application of the
mode of operation approach to spillage and breakage of products
offered for sale (and, thereby, to limit Sheehan to its facts)
is at odds both with the court's explanation of its holding, see
ibid., and with the fundamental tort principles on which the
mode of operation approach is based.11
10
In so doing, the motion judge cited a number of other
cases decided in the Superior Court that similarly limited the
mode of operation approach to dangerous conditions caused by
spillage or breakage of products offered for sale. That
articulation of the limitation -- that the risk derive not
simply from spillage or breakage but that the spillage or
breakage be of a product offered for sale -- imposes an even
further restriction of the doctrine beyond the limitation
expressly disclaimed by the court in its opinion.
11
For another recent discussion of basic tort principles in
the evaluation of a judicially formulated rule of convenience,
see Papadopoulos v. Target Corp., 457 Mass. 368, 370-378 (2010),
citing Sheehan, 448 Mass. at 791-792, in support of abrogating
10
To return to first principles, "[a] landowner must act as a
reasonable man in maintaining his 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 (1973), quoting from Smith v. Arbaugh's
Restaurant, Inc. 469 F.2d 97, 100 (D.C. Cir. 1972). The
foreseeability of potential danger is an essential limiting
characteristic, as is the opportunity of the landowner to take
reasonable steps to mitigate the risk to visitors. See Mounsey
v. Ellard, supra at 708-709. See also Sheehan, 448 Mass. at
783-784. Accordingly, under the traditional approach, a store
owner was held liable for injuries occurring on his premises
only if he had "actual or constructive notice of the existence
of the dangerous condition, [and] sufficient . . . time . . . to
remedy the condition." Id. at 784.
The rationale for adoption of the "modern" mode of
operation approach was simple: in circumstances where store
owners invite customers to use "self-service" to manipulate
merchandise displays, there is a foreseeable risk that
customers' handling of merchandise or displays will cause
disruption of the store's arranged display, to the end that
the rule that a property owner cannot be liable for a natural
accumulation of snow or ice.
11
hazardous conditions will result. See id. at 784-786. Put
another way, "the owner of such a self-service establishment has
actual notice that his mode of operation creates certain risks
of harm to his customers. Since a self-service operation
involves the reasonable probability that these risks will occur,
these risks are foreseeable." Id. at 786, quoting from Pimentel
v. Roundup Co., 100 Wash.2d 39, 43 (1983).12
We acknowledge that Sheehan, supra at 781, itself, involved
an injury caused by an item (a grape) that apparently fell from
a self-service display to the supermarket floor before a
customer slipped on it. However, under the rationale supporting
the mode of operation approach, it should not matter whether the
item that migrates from the self-service display to the floor
(thereby causing a slipping hazard) is a grape or a quantity of
shaved ice from the bed keeping the grapes cool. The
distinction drawn by the motion judge between items offered for
sale and other hazards foreseeably occurring as a result of the
store's use of a self-service mode of operation accordingly
should make no difference in the applicability of the mode of
operation approach. Moreover, as we have observed, the Supreme
12
In adopting the mode of operation approach, the Supreme
Judicial Court also observed that several jurisdictions, while
declining to adopt the mode of operation approach, nonetheless
take account of "recurrent" risks in assessing whether a
property owner should have known that a condition resulting from
its regular operations posed a risk of injury to customers. See
Sheehan, supra at 789.
12
Judicial Court explicitly cautioned that its adoption of the
mode of operation was not limited to "spilled foreign substances
or fallen matter." Sheehan, 448 Mass. at 786 n.6.
Returning to the facts of the instant case, on the summary
judgment record it is undisputed that the gravel area, the
source of the stone causing the plaintiff's injury, was a self-
service area used for the display and sale of store merchandise,
including large items, the manipulation of which foreseeably
could (and often did) cause stones to move onto the sidewalk,
creating a risk of tripping or falling. In our view, it is
accordingly an appropriate circumstance for application of the
mode of operation approach.
Of course, application of the mode of operation approach
does not alone establish liability of the landowner. It remains
for the plaintiff to prove that "an ordinarily prudent person in
the defendant's position would have taken steps, not taken by
the defendant, to prevent the accident that occurred." Id. at
790-791, quoting from Toubiana v. Priestly, 402 Mass. 84, 88-89
(1988). On this question, the summary judgment record is
inconclusive. Though the motion judge treated as established
fact that every store employee was instructed to inspect the
sidewalk for river stones, and that one employee (who was
working on the day of the accident) conducted such an inspection
every fifteen minutes, the record is less conclusive than that.
13
As we have observed, the store had no formal policy in place
concerning inspection of the outdoor sidewalks. Moreover,
Bowman (the store employee who described making such inspections
every fifteen minutes) described his practice in general terms,
on an average day. He offered no testimony that he made any
such inspections on the day of the accident, and we note that he
was working the cash register that day, with a "steady" flow of
customers past his register. We also note that (according to
Wile) the store was staffed with only five employees, compared
to a typical staffing complement on slow winter days of seven to
ten employees. See note 6, supra. In short, on the summary
judgment record there remains a genuine issue of material fact
as to whether the store took adequate steps to address the risk
posed by the inadvertent transfer of river stones from the
gravel area onto the adjacent sidewalk. Though the burden to
prove that the store failed to take adequate protective measures
remains with the plaintiff, the defendant has not shown, on the
present summary judgment record, that the plaintiff has no
reasonable expectation of meeting her burden at trial. See
Kourouvacilis v. General Motors Corp., 410 Mass. at 714.
Conclusion. The judgment dismissing the plaintiff's
complaint and the order denying the plaintiff's motion to vacate
the judgment are reversed. The case is remanded to the Superior
Court for further proceedings consistent with this opinion.
14
So ordered.
KANTROWITZ, J. (dissenting). When granting summary
judgment, the motion judge noted that the mode of operation
approach adopted by the Supreme Judicial Court in Sheehan v.
Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788 (2007)
(Sheehan), had thus far been applied routinely to "spillage and
breakage" cases, or in cases where a plaintiff was injured by a
product or an item that was available for customers to pick up
and carry around the store. The river stone in this case was
not a product for sale, or an item intended for customers to
pick up and carry, but rather part of the exterior design of the
defendant's store. The majority's application of the mode of
operation approach to these facts is an unnecessary expansion of
that approach, needlessly broadening the field. Perhaps of
equal significance, regardless of the approach used, summary
judgment was appropriate.
In Sheehan, the Supreme Judicial Court cited several cases
that illustrated the context of, and support for, the court's
decision. Here, the majority decision stands in stark contrast
to the cases cited by the Supreme Judicial Court. Notably, the
cases cited in Sheehan supporting the mode of operation approach
involved business establishments that invited customers to pick
up and carry products in or around the store, with a plaintiff
injured by a product that was capable of being handled and
conceivably purchased. See Tom v. S.S. Kresge Co., 130 Ariz.
2
30, 31 (1981) (customer slipped on clear liquid substance in
self-service store that sold primarily dry goods but also soft
drinks capable of being carried around store); Chiara v. Fry's
Food Stores of Ariz., Inc., 152 Ariz. 398, 399 (1987) (customer
slipped on creme rinse at self-service store); Safeway Stores,
Inc. v. Smith, 658 P.2d 255, 256 (Colo. 1983) (customer in self-
service grocery store slipped on substance that appeared to be
hand lotion); Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467,
469 (2002) (customer hit by boxed aluminum tables that fell from
shelf in self-service retail store); Gump v. Walmart Stores,
Inc., 93 Haw. 428, 433 (Ct. App. 1999) (customer slipped on
french fry in self-service store that contained a restaurant),
aff'd in part and rev'd in part on other grounds, 93 Haw. 417
(2000); Jackson v. K-Mart Corp., 251 Kan. 700, 701 (1992)
(customer in clothing section of self-service department store,
which sold avocado juice at store cafeteria, slipped and fell on
green liquid that was apparently avocado juice); Wollerman v.
Grand Union Stores, Inc., 47 N.J. 426, 428 (1966) (customer in
vegetable section of self-service supermarket slipped and fell
on string bean); Canfield v. Albertsons, Inc., 841 P.2d 1224,
1225 (Utah Ct. App. 1992) (customer in produce department of
self-service store slipped on lettuce leaf); Pimentel v. Roundup
Co., 100 Wash.2d 39, 41 (1983) (customer at self-service
3
department store was hit on foot by can of paint that fell from
shelf).
Each of these cases involved a customer or visitor injured
by a product for sale, or an item intended to be picked up and
carried, within a self-service store. Here, in contrast to the
cases cited in Sheehan and Sheehan itself, the object that
caused the plaintiff's injury was not an item for sale that a
customer could conceivably purchase from the store or an item
that the store invited customers to pick up and carry, within
its "self-service mode of operation." Sheehan, 448 Mass. at
786.
The approach adopted in Sheehan applies if a plaintiff's
injury is attributable to a "reasonably foreseeable dangerous
condition on the owner's premises that is related to the owner's
self-service mode of operation." Ibid. (emphasis supplied).
Until now, no published opinion from this court or the Supreme
Judicial Court (or apparently the Superior Court) has held that
this approach applies to hazards on a store's premises resulting
from anything other than an item that the store owner
conceivably intended for customers to pick up and carry around
(hence the phrase "self-service" as it appears in the Sheehan
opinion).
Under the majority's expansive application of this
approach, however, almost any potential hazard can be "related
4
to" a defendant's self-service mode of operation. Ibid.
Removal of the limits on the application of the mode of
operation approach, which lower courts have followed until this
point, will potentially expose self-service businesses in
Massachusetts to premises liability not envisioned by the
Sheehan court, because everything within such businesses is
conceivably related to their mode of operation under the
majority's new application of the approach.
A further problem with the majority's holding is that even
assuming that the mode of operation approach should apply,
summary judgment for the defendant was still appropriate, as the
motion judge explained. The mode of operation approach only
provides plaintiffs with a different (and less burdensome)
method for proving the notice element. See id. at 790. A
plaintiff must still demonstrate that the defendant acted
unreasonably. See ibid. Here, the plaintiff is unable to make
such a showing.
The motion judge properly found that the plaintiff had no
reasonable expectation of proving at trial that the defendant
breached a duty of care, even assuming that the mode of
operation approach applied. See Flesner v. Technical
Communications Corp., 410 Mass. 805, 809 (1991). The plaintiff
produced no affirmative evidence that a reasonable jury could
use to infer that the store was negligent. See Godbout v.
5
Cousens, 396 Mass. 254, 261 (1985) (nonmoving party may not rest
upon mere allegations or denials, but must respond with specific
facts); Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) (once
party moving for summary judgment establishes absence of triable
issue, burden shifts to nonmoving party to offer affirmative
evidence). See also Mass.R.Civ.P. 56(c), as amended, 436 Mass.
1404 (2002). Mere assertions that the defendant's evidence
should not be believed is not affirmative evidence sufficient to
withstand summary judgment. See Godbout v. Cousens, supra at
261-262. The bare fact that an accident occurred is not proof
of negligence. See, e.g., Tamagno v. Conley, 322 Mass. 218, 219
(1948) ("The mere fact that the accident happened is of course
no evidence of the defendant's negligence").
At their depositions, the defendant's employees testified
on the store's practice of inspecting the sidewalk and pushing
back any river stones that escaped from the gravel area. In
contrast, the plaintiff merely argues that a jury could
disbelieve these accounts of the employees' inspection efforts
and find in her favor. Arguing that a fact finder could
theoretically disbelieve a witness at trial is not affirmative
evidence. See Boston v. Santosuosso, 307 Mass. 302, 349 (1940)
6
("[A]s has been pointed out many times, disbelief of evidence is
not the equivalent of affirmative evidence to the contrary").1
The plaintiff has provided no affirmative evidence, for
example, that store employees failed to inspect the sidewalk on
the day of her accident, or that the employees who were supposed
to inspect the sidewalk as part of their duties neglected to
take proper care and unreasonably allowed a hazardous condition
to exist on the sidewalk. She provided no evidence that
demonstrated that the river stone on which she fell had been on
the sidewalk for an unreasonable amount of time. The mere fact
that she fell on a river stone is not evidence of the store's
alleged negligence. See Tamagno v. Conley, supra.
In contrast, the defendant's evidence showed that
reasonable efforts were made to inspect the sidewalk, including
a general practice of inspecting the outside area for safety.
The defendant also showed that employee Bowman, who was working
on the day of the accident, usually checked the sidewalk for
river stones every fifteen minutes. If there were evidence that
1
Indeed, juries are routinely instructed: "If you do not
believe a witness's testimony that something happened, of course
your disbelief is not evidence that it did not happen. When you
disbelieve a witness, it just means that you have to look
elsewhere for credible evidence about that issue."
Massachusetts Superior Court Civil Practice Jury Instructions
§ 1.2.8 (Mass. Cont. Legal Ed. 3d ed. 2014). See Criminal Model
Jury Instructions for Use in the District Court, Instruction
2.260 (Mass. Cont. Legal Ed. 2009) (same).
7
these employees neglected their duties that day, the plaintiff
needed to place such evidence before the motion judge.
As the plaintiff produced no such evidence, the judge
properly found that there were no genuine issues for trial
because the plaintiff could not prove that the store acted
improperly. See Flesner v. Technical Communications Corp., 410
Mass. at 809. Viewing the evidence in the light most favorable
to the plaintiff, the defendant was entitled to judgment as a
matter of law, even assuming that the mode of operation approach
applied. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.
117, 120 (1991).
Because the majority's decision expands the application of
the mode of operation approach, and because summary judgment was
properly granted in any event, I respectfully dissent.