In most trip-and-fall or slip-and-fall lawsuits, injured persons hoping to prevail have to prove actual or constructive knowledge. That is, they have to show the property owner/ manager knew or should have known about the hazard, either because:
- They created it;
- They were informed of it;
- It existed for such a length of time, it should have been discovered in the course of reasonable care.
It is the plaintiff who bears this burden of proof.
In some courts, there is a legal theory that is gaining traction in slip-and-fall cases. It’s known as the “mode of operation” doctrine. The thinking goes that there is a rebuttable presumption of negligence where there is proof of a reasonably foreseeable condition made likely by reason of defendant’s mode of operation and the owner’s failure to take appropriate steps to prevent the problem.
Massachusetts is one of those courts that have adopted this approach (it did so in 2007 with the case of Sheehan v. Roche Brothers Supermarkets).
More recently, there was the slip-and-fall lawsuit of Bowers v. P. Wile’s, Inc., recently before the Massachusetts Supreme Judicial Court.
Court records indicate the incident in question occurred in December 2011. Plaintiff went to defendant store in Cape Cod. She approached the store on a walkway that ran between the parking lot and the store. Adjacent to that was a gravel area made up of larger “river stones.” The store displayed a number of landscaping products near there, and customers were free to help themselves to merchandise.
Plaintiff tripped on one of those stones that had apparently somehow made its way to the walkway. She hadn’t seen the stone before she fell on it. As a result of her fall, she suffered a broken hip that required two surgeries. Moments after she fell, an employee rushed to her aid and started kicking several stones off the walkway where she had fallen.
When plaintiff filed her personal injury lawsuit, it was revealed that the garden store had considered at one point installing grass in this area adjacent to the walkway, but ultimately decided on stones, figuring it would be less expensive to maintain. This gravel had been in place for 15 years without complaint.
Still, store management was reportedly aware the stones sometimes became dislodged by people walking over them and that those stones sometimes ended up on the walkway. For this reason, the store had an informal practice of instructing an employee to periodically check the walkway to make sure there were no stones in the walkway and removing any that were.
It was undisputed in this case that the store owed plaintiff a duty of reasonable care with respect to the condition of the walkway. The question was whether the store staff had notice of a potentially hazardous condition created by this stone.
Defense argued it did not know about this particular stone’s position and therefore could not be liable. Plaintiff, however, argued that because it was part of the store’s regular mode of operation, management did have constructive knowledge.
Trial court granted summary judgment to the defense, but the state supreme judicial court vacated this judgment and remanded the case to trial.
Plaintiff had conceded she couldn’t prevail in her claim based on a traditional theory of premises liability. That is, that the store either put the stone there or that this specific stone had existed for such a length of time that the store should have known about it. Rather, she argues the constructive knowledge came from the fact that stones were regularly in the walkway and the store knew about the potential hazard. The state high court agreed.
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Bowers v. P. Wile’s, Inc., July 28, 2016, Massachusetts Supreme Judicial Court
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