Bowers v. P. Wile's, Inc.

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SJC-11923

LINDA S. BOWERS vs. P. WILE'S, INC.1

Middlesex. January 7, 2016. - July 28, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.2

Negligence, Retailer. 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 also heard
by him.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Joseph T. Black for the defendant.
David McCormack for the plaintiff.

The following submitted briefs for amici curiae:
William P. Mekrut for Massachusetts Defense Lawyers'
Association.
Carol A. Kelly for Property Casualty Insurers Association

1
Doing business as Agway of Cape Cod.
2
Justice Duffly participated in the deliberation on this
case and authored this opinion prior to her retirement.
 2

of America.
Annette Gonthier Kiely, Michael C. Najjar, Tomas R. Murphy,
& Elizabeth N. Mulvey for Massachusetts Academy of Trial
Attorneys.

DUFFLY, J. In this case we are called upon to determine

whether the "mode of operation" approach to premises liability,

see Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 683

(2015) (Sarkisian), and Sheehan v. Roche Bros. Supermkts., Inc.,

448 Mass. 780, 788 (2007) (Sheehan), is applicable with respect

to the operation of a garden store. The plaintiff, Linda

Bowers, suffered a displaced fracture of her right hip after she

slipped and fell on a walkway leading into a Cape Cod garden

store owned by the defendant, P. Wile's, Inc., doing business as

Agway of Cape Cod (Agway). Agway maintains what the parties

refer to as a "gravel area" near the concrete walkway leading

into the store, where landscaping items are displayed for sale.

Customers may enter the gravel area, which consists of small

stones less than one inch in diameter,3 and shop for products

displayed there without assistance from any Agway employee.

After she fell on Agway's premises, Bowers filed a

complaint in the Superior Court asserting that she tripped on a

stone that had migrated from the gravel area to the walkway, and

that Agway knew that the movement of the stones from the gravel

3
The parties stipulate that these stones are "river
stones," and are roughly three-fourths of an inch in size;
"river stone" is not otherwise described.
 3

area created a risk of tripping on the walkway, but failed to

take reasonable steps to mitigate that risk. Agway moved for

summary judgment, arguing that, under the traditional theory of

premises liability, where a foreign object is temporarily on a

defendant's premises, Bowers would be required to prove Agway's

actual or constructive notice of the presence of the stone on

the walkway, which she concedes she is unable to do, because she

does not know how the stone came to be on the walkway, nor how

long it had been there when she tripped and fell. See Sheehan,

448 Mass. at 782-783, citing Restatement (Second) of Torts § 343

(1965).

Bowers argued that, notwithstanding an inability to prevail

under a traditional theory of premises liability, she could

prevail by applying a mode of operation analysis. Bowers

contends that, under this approach, she could establish that

Agway had notice that the stone was present because Agway uses a

self-service gravel area as part of its daily operation, and was

aware that customers walking in the area to pick up items for

purchase might dislodge stones onto the walkway.4 See Sheehan,

supra.

Concluding that the mode of operation approach is not

4
A self-service operation is one characterized by customers
being permitted to take products for sale from displays without
employee assistance. See Sarkisian v. Concept Restaurants,
Inc., 471 Mass. 679, 682 (2015) (Sarkisian); Sheehan v. Roche
Bros. Supermkts., Inc., 448 Mass. 780, 784-786 (2007) (Sheehan).
 4

applicable in these circumstances, a Superior Court judge

granted Agway's motion for summary judgment. In a divided

opinion, the Appeals Court reversed. See Bowers v. P. Wile's,

Inc., 87 Mass. App. Ct. 362, 363 (2015). We allowed Agway's

motion for further appellate review, and conclude that the mode

of operation analysis is applicable in the circumstances here.5

1. Background. We recite the undisputed facts from the

summary judgment record, viewed in the light most favorable to

the nonmoving party. See LeBlanc v. Logan Hilton Joint Venture,

463 Mass. 316, 318 (2012); Mammone v. President & Fellows of

Harvard College, 446 Mass. 657, 659-660 (2006). On a December

afternoon in 2011, Bowers went to one of Agway's garden stores

on Cape Cod to shop. She approached the store on a walkway that

runs between the parking lot and the store. The six-foot wide

gravel area, made up of "river stones," is adjacent to this

walkway. Agway displays landscaping merchandise for sale in

this area, and customers may help themselves to products there.6

5
We acknowledge the amicus briefs submitted by the
Massachusetts Academy of Trial Attorneys, the Property Casualty
Insurers Association of America, and the Massachusetts Defense
Lawyers' Association.
6
The dissent describes the gravel area as a walkway that
customers may use "to enter the self-service area of the store,"
and concludes that "customers' ability to help themselves to
goods . . . did not factor into the condition at issue here."
Post at . But, as Agway concedes, and as the judge found,
the gravel area is not a walkway leading to a separate self-
service area. Rather, as deposition testimony and photographic
 5

While walking on the walkway adjacent to the gravel area, Bowers

tripped on one of the stones that apparently had migrated onto

the walkway; she did not see the stone before she fell. As a

result of the fall, Bowers suffered a displaced fracture of her

right hip that required two surgical repairs. Immediately after

Bowers fell, an Agway employee, who had come outside to assist

her, kicked several stones from the walkway into the gravel

area.

Agway had installed the gravel area as part of its

installation of a porch addition to the front of the garden

store. Although Agway considered planting grass in this area,

it instead chose to use gravel. The gravel area had been in

place for fifteen years without any previous complaints of a

customer having fallen due to the presence of the stones.

Nonetheless, prior to Bowers' fall, Agway was aware that stones

could be dislodged by people walking in the gravel area, and

could end up on the walkway, creating a potential tripping

hazard.7 As a result, Agway had developed a practice of having

exhibits establish, the gravel area is in fact a self-service
area in which Agway displays items for sale, and which customers
may enter to select items for purchase without employee
assistance. The items that Agway displays in the gravel area
include pottery, shovels, rakes, soil, and mulch, as well as
plants in small containers.
7
A store manager testified during her deposition that there
was a "general consensus" to keep an eye on the gravel area in
part because the stones could "create a tripping hazard."
 6

employees inspect the walkway to make sure that it was free of

stones. The practice was informal, and there was no set

schedule under which employees were to check the walkway.

Rather, employees would check the walkway throughout the day, as

they went outside to assist customers, or for other reasons

during the course of their work.

2. Discussion. We review a decision on a motion for

summary judgment de novo. See LeBlanc v. Logan Hilton Joint

Venture, 463 Mass. at 318. Summary judgment for the defendant

is not appropriate if "anywhere in the evidence, from whatever

source derived, any combination of circumstances could be found

from which a reasonable inference could be drawn in favor of the

plaintiff [as the nonmoving party]" (citation omitted). Mullins

v. Pine Manor College, 389 Mass. 47, 56 (1983). Ordinarily,

questions of negligence are for the trier of fact; only when no

rational view of the evidence would warrant a finding of

negligence is the question appropriate for summary judgment.

See Petrell v. Shaw, 453 Mass. 377, 381 (2009).

A business owes a "duty to a paying patron to use

reasonable care to prevent injury to him by third persons,"

Sweenor v. 162 State St., Inc., 361 Mass. 524, 526 (1972), and

"to keep [its] premises in a reasonably safe condition for [its]

visitors' use." Jaillet v. Godfried Home Bakeries, Inc., 354

Mass. 267, 268 (1968), quoting LeBlanc v. Atlantic Bldg. &
 7

Supply Co., 323 Mass. 702, 705 (1949). To find a retail store

liable for a plaintiff's injuries incurred as a result of a

dangerous condition on the premises not caused or created by the

store, a jury must find that the store (1) knew of, or, by

exercise of reasonable care would have discovered, the dangerous

condition; (2) the condition created an unreasonable risk of

harm; (3) the store could not have expected the plaintiff to

discover or protect herself against the potential harm; and (4)

the store failed to exercise reasonable care to protect the

plaintiff. See Deagle v. Great Atl. & Pac. Tea Co., 343 Mass.

263, 264-265 (1961).

Here, it is undisputed that Agway owns the walkway on which

Bowers fell, and owed her a duty of "reasonable care" with

respect to its condition. See Papadopoulos v. Target Corp., 457

Mass. 368, 372 (2010). This case revolves around the extent to

which Agway had notice of a potentially hazardous, temporary

condition created by a stone that had migrated to the walkway.

See Sarkisian, 471 Mass. at 684.

Under the traditional approach to premises liability, a

plaintiff can establish that a business had actual or

constructive notice of a temporary hazard. Constructive notice

can be established by evidence indicating the length of time the

hazard was on the walkway. See Oliveri v. Massachusetts Bay

Transp. Auth., 363 Mass. 165, 166 (1973). Using this analysis,
 8

Bowers would be required to establish notice by showing that

Agway (1) put the stone on the walkway, (2) knew it was on the

walkway, or (3) had constructive knowledge that the stone was on

the walkway because such notice could be established where,

based on the length of time the stone had been on the walkway,

Agway should have discovered it. See id.

Bowers does not assert that Agway placed the stone on the

walkway. She also does not suggest that she has any knowledge

of how long the stone was on the walkway. Accordingly, under

the traditional theory of premises liability, Bowers cannot

establish Agway's actual or constructive knowledge of the

presence of the stone on the walkway, because she cannot show

that Agway had sufficient time to become aware of and remedy the

condition. See Gallagher v. Stop & Shop, Inc., 332 Mass. 560,

563 (1955). Bowers argues, however, that her claim should be

viewed under the mode of operation approach, and that, under

such an approach, summary judgment should not have been granted.

a. Scope of mode of operation approach. The mode of

operation approach recognizes that a proprietor's manner of

operation can create foreseeable hazards that might arise

through the actions of third parties, thus obligating the

proprietor to take all reasonable precautions necessary to
 9

protect against those foreseeable hazards.8 Sheehan, 448 Mass.

at 786. Under this analysis, a plaintiff may survive a motion

for summary judgment by establishing that a business reasonably

should have anticipated that "its chosen method of operation

[would] regularly invite third-party interference resulting in

the creation of unsafe conditions," and that the plaintiff was

injured "after encountering the condition so created."

Sarkisian, 471 Mass. at 684, citing Sheehan, supra at 791.

Whether an entity's mode of operation makes a dangerous

condition reasonably foreseeable ordinarily is a question for

the finder of fact. See Massachusetts Superior Court Civil

Practice Jury Instructions § 2.3.8 (Mass. Cont. Legal Educ. 3d

ed. 2014).

The mode of operation approach "removes the burden on the

victim of a slip and fall to prove that the owner or the owner's

employees had actual or constructive notice of the dangerous

condition or to prove the exact failure that caused the

accident." Sheehan, supra at 790. Instead, a "plaintiff

satisfies the notice requirement if he establishes that an

injury was attributable to a reasonably foreseeable dangerous

8
See Hetzel v. Jewel Cos., 457 F.2d 527, 530 (7th Cir.
1972), cited in Sheehan, 448 Mass. at 789 ("We believe that
proof of constructive notice to a possessor of land of the
existence of a dangerous condition is properly accomplished
where it is shown that the specific condition at issue, though
transitory, is a part of a known and continuing or recurrent
condition").
 10

condition on the owner's premises that is related to the

owner's . . . mode of operation." Id. at 786. Cf. Jackson v.

K-Mart Corp., 251 Kan. 700, 702, 709 (1992) (mode of operation

approach "looks to a business's choice of a particular mode of

operation and not events surrounding the plaintiff's accident,"

and permits customer to recover for injuries "due to a condition

inherent in the way the store is operated" [citation omitted]).

The approach developed as a means of addressing cases in which

an entity's manner of operating its business makes the regular

occurrence of dangerous conditions caused by customer action

reasonably foreseeable, but where an injured customer often

would be unable to obtain relief for an injury stemming from

such foreseeable conditions under traditional premises

liability, which requires "notice of the specific dangerous

condition itself and not . . . general notice of conditions

producing the dangerous condition." See Chiara v. Fry's Food

Stores of Ariz. Inc., 152 Ariz. 398, 400 (1987) ("person injured

in a supermarket will rarely be able to trace the origins of the

accident").

The mode of operation approach is based on the theory that

customers interacting with products for sale, without the

assistance of store employees,

"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
 11

foreseeable risks of harm to other patrons. . . . [I]t
[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."

Sheehan, 448 Mass. at 784-785, 788. In such circumstances, a

store "owner has scarce incentive to act reasonably, because the

injured patron will seldom be able to discern the origin of the

unsafe condition and, thus, satisfy the notice requirement under

the traditional approach to premises liability." Sarkisian, 471

Mass. at 686. See Golba v. Kohl's Dep't Store, Inc., 585 N.E.2d

14, 15 (Ind. Ct. App. 1992). Therefore, where the manner of

operation of a business creates a reasonably foreseeable risk of

a hazardous condition, the approach permits a plaintiff to

recover for injuries resulting from such conditions if the

plaintiff establishes that the business did not take all

"adequate steps" reasonably necessary under the circumstances to

protect patrons against that risk. Sheehan, supra at 790. See

Sarkisian, supra at 687. Cf. Jackson v. K-Mart Corp., 251 Kan.

at 710-711.

We have emphasized that the mode of operation approach

"does not make the owner of a self-service . . . store an

insurer against all accidents." See Sheehan, 448 Mass. at 790.

The approach does not eliminate the other elements of premises

liability; a plaintiff is "still required to prove that the
 12

defendant failed to take reasonable measures commensurate with

the risks involved . . . to prevent injury" and "that the

defendant acted unreasonably" in the circumstances. Id. at 786-

787. Indeed, "nearly every business enterprise produces some

risk of customer interference," and, in the absence of limiting

principles, "[a] plaintiff could get to the jury in most cases

simply by presenting proof that a store's customer could have

conceivabl[y] produced the hazardous condition." Chiara v.

Fry's Food Stores of Ariz., Inc., 152 Ariz. at 400-401.

Accordingly, we have required a plaintiff to establish a

"particular" mode of operation that makes the hazardous

condition foreseeable,9 and a "recurring feature of the mode of

operation," rather than one where the risk only "conceivabl[y]"

could arise from the mode of operation. See Sarkisian, 471

Mass. at 684, 687. See also Chiara v. Fry's Food Stores of

Ariz., 152 Ariz. at 401; Jackson v. K-Mart Corp., 251 Kan. at

710 (mode of operation approach applies only if commercial

entity "could reasonably foresee that the dangerous condition

9
Cf. Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420 (1972)
("practice of extensive selling of slices of pizza on waxed
paper to customers who consume it while standing creates the
reasonable probability that food will drop to the floor");
Fisher v. Big Y Foods, Inc., 298 Conn. 414, 426-427 (2010)
(approach triggered by "showing that a more specific method of
operation within a self-service retail environment gave rise" to
hazardous condition); Pimentel v. Roundup Co., 100 Wash. 2d 39,
49-50 (1983) (approach applies "if the particular self-service
operation of the defendant is shown to be such that the
existence of unsafe conditions is reasonably foreseeable").
 13

would regularly occur"). In addition, as noted, even where a

plaintiff is able to prove notice through a defendant's mode of

operation that a dangerous condition was reasonably foreseeable,

that alone does not establish liability. A plaintiff still must

establish that the steps the defendant took to protect customers

from the condition that resulted in the injury were unreasonable

in the circumstances. See Sarkisian, supra at 683-684.

b. Bowers's mode of operations claim. To succeed in her

mode of operation claim, Bowers has the burden to establish that

(1) the risk that customers would dislodge stones from the

gravel area onto the walkway was reasonably foreseeable; (2) it

was reasonably foreseeable that stones lying on the walkway

would present a tripping hazard to customers walking on the

walkway adjacent to the gravel area; and (3) the steps Agway

took to protect customers from the potential hazard of tripping

on the stones were unreasonable. Viewed in the light most

favorable to Bowers, she has established a genuine question of

material fact with respect to each of these issues.

Based on the summary judgment record, there is a disputed

question of fact whether Agway's choice of gravel rather than

another, nonmobile surface, such as the grass it had considered

for its self-service area, which is adjacent to the walkway

leading to the main entrance to the store, represents a

"particular" mode of operation of the self-service area that
 14

makes the reoccurring hazard of stones on the walkway, after

customers have walked through the self-service area,

foreseeable.10 The store manager testified at deposition that

Agway maintained an informal policy of having employees check

the walkway whenever an employee was outside assisting a

customer in the gravel area, or performing other work,

approximately every fifteen minutes, at least in part due to

concerns that stones might come to rest on the walkway as a

result of customers walking in and around the gravel area.11

Thus, there is a genuine question of material fact whether the

risk of dislodged stones from customers walking in the gravel

area in order to look at and select items for purchase was not

just a "conceivable" risk, but, rather, a recurring risk created

by Agway's mode of operation. See Sarkisian, 471 Mass. at 684,

687 (deposition testimony of nightclub manager that "spills on

the dance floor are part of the business"). Cf. Chiara v. Fry's

10
In a case in which a customer in a home improvement store
was injured by a paint can that fell onto her foot from a
display of stacked paint cans, for instance, the Washington
State Supreme Court concluded that a mode of operation analysis
was applicable, because the stacked paint cans overhung the
display shelf, and the plaintiff's expert testified at
deposition that the manner in which the can that fell on the
plaintiff's foot had been stacked would have made it "extremely
unstable" to the point where "the slightest vibration might
overbalance it." See Pimentel v. Roundup Co., 100 Wash. 2d at
41, 49-50.
11
As noted, it is undisputed that an Agway employee
observed several stones on the walkway when he went to Bowers'
aid after she fell.
 15

Food Stores of Ariz., Inc., supra at 401; Fisher v. Big Y Foods,

Inc., 298 Conn. 414, 426-427 (2010).

If a jury were to conclude that Agway's maintenance of the

gravel area was a mode of operation that created a foreseeable

risk that customers would dislodge stones onto the walkway,

which, according to its manager, Agway viewed as a potential

tripping hazard, there would be a further question of material

fact whether Agway's efforts to protect customers from the

presence of stones on the walkway were reasonable in the

circumstances. The jury then would have to determine whether

Agway's policy of informal but periodic inspection of the

walkway by employees, approximately every fifteen minutes, was a

reasonable means by which to protect customers from the risk

created by the migrating stones.12 See G.S. Enterprises, Inc. v.

Falmouth Marine, Inc., 410 Mass. 262, 272 (1991).

3. Conclusion. The judgment in favor of the defendant is

vacated and set aside, and the matter is remanded to the

Superior Court for further proceedings consistent with this

opinion.

So ordered.

12
Bowers asserts also that, even if the periodic inspection
was reasonable, the record would support a conclusion that the
policy was not followed on the day of her injury. If so, that
question would be for the fact finder on remand.
 CORDY, J. (dissenting). I disagree with what I believe is

an overly broad expansion of the heretofore narrowly applicable

mode of operation approach to premises liability. Because the

defendant's chosen method of operation -- a "gravel area" located

adjacent to an outdoor self-service portico1 -- does not

regularly invite third-party interference in any way previously

recognized by this court as an exception to traditional premises

liability, and because I agree with the court that the

plaintiff's claim fails under the traditional approach, ante

at , I respectfully dissent. In my opinion, the order

allowing the motion for summary judgment should be affirmed.

Massachusetts has "[h]istorically . . . followed the

traditional approach governing premises liability." Sheehan v.

Roche Bros. Supermkts., Inc., 448 Mass. 780, 783 (2007). Under

that approach, a store owner is required to maintain his or her

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"

(citation omitted). Id. at 783-784. "[T]he law has afforded

1
What items were for sale at the self-service section of
the portico on the day on which the defendant fell is not clear
from the record. The plaintiff testified that, before her fall,
she was distracted by a bird bath. The photograph that is part
of the record displays large stone and clay bird baths. While
not necessary to my conclusion, I note only that heavy objects
such as bird baths, though seemingly part of a self-service
operation, are not properly characterized as self-service items
if employer assistance is required in their purchase.
 2

store owners a reasonable opportunity to discover and correct any

hazards before liability attaches." Id. at 784. We have thus

held that, unless an exception to the general rule applies,

"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."

Id.

In Sheehan, we adopted one such exception, the "mode of

operation" approach to premises liability, id. at 788,

subsequently expanded in Sarkisian v. Concept Restaurants, Inc.,

471 Mass. 679, 684-685 (2015), applicable "to situations where a

business should reasonably anticipate that its chosen method of

operation will regularly invite third-party interference

resulting in the creation of unsafe conditions, and a visitor

suffers an injury after encountering the condition so created."

Rather than supplanting the traditional approach entirely, the

mode of operation approach was adopted to "refine[] the

Restatement's notice requirement in a narrow subset of premises

liability cases," only applying under "circumstances in which

strict application of the traditional approach's notice

requirement [would] produce unjust results." Id. at 682-683.

The exception was intended to be narrow because, as we have

observed in the past, "'nearly every business enterprise produces

some risk of customer interference,' and, in the absence of
 3

limiting principles, '[a] plaintiff could get to the jury in most

cases simply by presenting proof that a store's customer could

have conceivably produced the hazardous condition." Id. at 684,

quoting Chiara v. Fry's Food Stores of Ariz., Inc., 152 Ariz.

398, 400-401 (1987). As a result, Massachusetts courts have

routinely applied two limiting principles in considering whether

to subject a given case to the mode of operation approach, both

of which dictate a dismissal in the present case.

First, Massachusetts courts have, until now, applied the

mode of operation approach exclusively in "spillage and breakage"

cases, and those in which a customer is injured by a product or

item either for sale on the premises or contemplated to be

carried around the business. See, e.g., Sarkisian, 471 Mass. at

682 (spilled drinks); Sheehan, 448 Mass. at 781-782 (spilled

grape). The hallmark of our mode of operation approach is that

customers interacting with products for sale "may not be as

careful and vigilant as a store owner." Sheehan, supra at 784-

785. Implicit in that concept is the assumption that business

owners, by virtue of their method of operation, should be liable

when their customers are negligent in relation to the products

that were traditionally only handled by store owners and store

employees. See id. at 784 (store owners are "thus require[d]

. . . to use a degree of care commensurate with the risks

involved"). This distinction is a practical one; an employer
 4

should not be expected reasonably to detect or protect against

the spillage of products not for sale or intended to be picked up

and carried by third parties.

Indeed, all of the cases cited by the court (as well as

those on which we relied in adopting the mode of operation

approach in Sheehan) concern injuries that stemmed from items

that the purveyor invited and intended third parties to pick up

and carry around the establishment, resulting in an injury when

third parties caused such items to spill or break. Such a

limitation ensures, as we have emphasized, that the mode of

operation approach, otherwise allowing the substitution of

reasonable anticipation in lieu of traditional premises

liability's notice requirement, "does not make the owner of a

self-service . . . store an insurer against all accidents." Id.

at 790. In contrast to those cases, the object on which the

plaintiff was injured in the present case was not offered for

sale by the defendant, nor could it have rationally been

contemplated as something that would be carried around by third

parties.

Second, an injured plaintiff is required to demonstrate a

causal nexus between the defendant's method of operation and the

dangerous condition that allegedly led to his or her injury.

See, e.g., Sarkisian, 471 Mass. at 684, 687; Sheehan, 448 Mass.

at 781-782, 786 (mode of operations approach's application
 5

limited to "reasonably foreseeable dangerous condition[s] on the

owner's premise that [are] related to the owner's self-service

mode of operation" [emphasis added]). See also Curet v.

Walgreens Co., 85 Mass. App. Ct. 1119 (2014). The object causing

the injury must not only be one that the business owner invited

the customer to carry around the store, but also be on the

premises because of the business owner's self-service operation.

The fact that the defendant's customers were allowed to use

the gravel strip in question to enter the self-service area of

the store does not turn this case into a mode of operation

inquiry akin to anything any appellate court in Massachusetts, or

anywhere else in the country, has deemed appropriate for a mode

of operation inquiry. The customers' ability to help themselves

to goods, as opposed to being assisted by store employees, did

not factor into the condition at issue here. See Tavernese v.

Shaw's Supermkts., Inc., 72 Mass. App. Ct. 1107 (2008). Indeed,

"there was simply no evidence that the presence of [the river

stone] on the [sidewalk] was in any way connected to [the

defendant's] self-service mode of operation." Curet, supra.

My concern is that the court's expansion of the mode of

operation approach to include claims like that in the present

case unnecessarily widens the scope of liability for business

owners without any reasonable opportunity to discover and correct

potentially dangerous conditions. The defendant was not inviting
 6

third parties to interact with the gravel area in question in any

way other than as a potential ingress and egress to and from the

portico. Put another way, had the exterior design of the

defendant's store been the exact same, absent any products

displayed outside, an injury caused by a meandering river stone

absolutely would be considered under our traditional premises

liability jurisprudence. See, e.g., Oliveri v. Massachusetts Bay

Transp. Auth., 363 Mass. 165, 166 (1973).

The court's holding ostensibly opens up any architectural

decision made by self-service retail store owners to an

application of the mode of operation approach: If a customer is

injured in the parking lot of a self-service establishment, was

the type of cement used part of the property owner's method of

operation? If a customer of a supermarket trips on exposed

linoleum flooring, is the surface part of the property owner's

method of operation? In my opinion, the traditional premises

liability test remains the accepted jurisprudence for determining

such disputes, even for self-service retailers, except under

narrow circumstances not present in this case. See, e.g., Jasko

v. F.W. Woolworth Co., 177 Colo. 418, 420 (1972) (approach not

triggered by self-service alone, but by specific "method of

sale": "practice of extensive selling of slices of pizza on

waxed paper to customers who consume it while standing creates

the reasonable probability that food will drop to the floor");
 7

Fisher v. Big Y Foods, Inc., 298 Conn. 414, 426-427 (2010)

(concluding that mode of operations approach is not triggered by

self-service alone but rather by "[an] additional showing that a

more specific method of operation within a self-service retail

environment gave rise" to dangerous condition); Pimentel v.

Roundup Co., 100 Wash. 2d 39, 49-50 (1983) (declining to adopt

rule that notice requirement is eliminated as matter of law for

self-service establishments, while concluding approach applies

only "if the particular self-service operation of the defendant

is shown to be such that the existence of unsafe conditions is

reasonably foreseeable"). The court's holding substantially and

unrecognizably expands our limited exception from traditional

premises liability, such that the exception threatens to swallow

the rule entirely.

For the foregoing reasons, I conclude that the grant of

summary judgment to the defendant here was warranted. See

Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983).