Date: 06-23-2015

Case Style: Angela Sarkisian v. Concept Restaurants, Inc.

Case Number: SJC-11786

Judge: Cordy

Court: Supreme Judicial Court of Massachusetts

Plaintiff's Attorney: Karen L. Stern for the plaintiff.

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

Defendant's Attorney: Richard L. Neumeier for the defendant.

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

Description: 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
(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. 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.
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
3
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 (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

2 We acknowledge the amicus briefs submitted by the
Massachusetts Academy of Trial Attorneys and the Massachusetts
Defense Lawyers Association.
4
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
5
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 (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 (2012), quoting
Kourouvacilis, supra at 711.
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

3 Notwithstanding the allowance of the defendant's motion
for summary judgment, a separate order of judgment in favor of
the defendant was never specifically entered on the District
Court docket. See Mass. R. Civ. P. 58 (a), as amended, 371
Mass. 908 (1977) ("Every judgment shall be set forth on a
separate document . . ."); Mass. R. A. P. 4 (a), as amended, 464
Mass. 1601 (2013) ("notice of appeal . . . shall be filed with
the clerk of the lower court within thirty days of the date of
the entry of the judgment . . ."). Nonetheless, the parties,
Appellate Division of the District Court, and Appeals Court
treated the allowance of the defendant's motion as the judgment.
Finding no prejudice to either of the parties in the premature
filing of the notice of appeal, we treat the appeal as if
judgment had entered. See Ramaseshu v. Board of Registration in
Med., 441 Mass. 1006, 1006 n.1 (2004); Swampscott Educ. Ass'n v.
Swampscott, 391 Mass. 864, 865–866 (1984).
6
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.
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. 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. We noted that the evolution
of grocery stores from clerk-assisted to self-service operations
7
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.
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, quoting Wollerman v. Grand
Union Stores, Inc., 47 N.J. 426, 430 (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.
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. Rather, it
8
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
9
floor. See Sheehan, 448 Mass. at 788, quoting Restatement
(Second) of Torts § 343 comment e ("one entering a store,
theatre, office building, or hotel . . . is entitled to expect
that his host will make far greater preparations to secure the
safety of his patrons than a householder will make for his
social or even his business visitors").
The defendant suggests that applying the mode of operation
approach outside of the self-service context will result in a
regime of strict liability. We again disagree. The law demands
reasonable care, not perfection. See Restatement (Second) of
Torts §§ 343, 344. See also Sheehan, 448 Mass. at 790
("Adoption of [the mode of operation] approach would not hold
owners strictly liable to all plaintiffs involved in slip-andfall
incidents on their premises"). Irrespective of the
particular mode of operation involved, the plaintiff bears the
burden of establishing that the defendant failed to exercise
reasonable care in protecting its patrons from the unsafe
conditions facilitated by its mode of operation.
4 See id. at
790-791.

4 In the case of a nightclub operating with bars on the
dance floor and permitting patrons to dance with their drinks,
such reasonable care might include the employment of sufficient
staff charged with monitoring and cleaning up spilled liquid on
the dance floor at sufficient intervals, or the use of beverage
containers on the dance floor that are less likely to spill
liquid when jostled. See Restatement (Second) of Torts § 344
comment f (1965).
10
Nonetheless, it is true that "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 conceivably produced the hazardous
condition." Chiara v. Fry's Food Stores of Ariz., Inc., 152
Ariz. 398, 400-401 (1987). In view of these concerns, the court
in Sheehan limited the mode of operation approach 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. Sheehan, 448 Mass at 791. The court in Sheehan did
not, however, limit this modern refinement of the notice
requirement to unsafe conditions arising from self-service
operations. See generally id. at 785-786, 791, citing Jackson
v. K-Mart Corp., 251 Kan. 700, 701, 710-711 (1992) (spilled
juice purchased from in-store cafeteria). See also Gump v. WalMart
Stores, Inc., 93 Haw. 417, 419-421 (2000) (fallen french
fry purchased from in-store fast-food restaurant); McDonald v.
Safeway Stores, Inc., 109 Idaho 305, 307-308 (1985) (melted ice
cream dispensed by employees). As was aptly observed in Konesky
v. Post Road Entertainment, 144 Conn. App. 128, 140-141 (2013),
a case on which the defendant relies, self-service is one
11
"situation in which the proprietor's 'operating methods' enhance
the risk of recurring dangerous conditions brought about by
third party interference . . . but it logically is not the only
business method that can have such an effect." Accordingly, we
now state explicitly what was implicit in Sheehan, namely, that
so long as the aforementioned parameters for applying the mode
of operation approach exist, there is no basis for limiting its
application to self-service establishments.5
c. Defendant's mode of operation. Alternatively, the
defendant argues that even if the mode of operation approach
could be applied outside of the self-service context, it should
be further narrowed to exclude situations where a nightclub's
only feasible method of operation is to serve drinks to patrons
who are free to move about the premises. In support of this
position, the defendant attempts to analogize this case to
Konesky, 144 Conn. App. at 141-142, a case involving a nightclub
that served cans and bottles of beer to patrons from large
plastic tubs filled with ice. Id. at 130-131. The plaintiff in
that case slipped and fell on a puddle located near one of the
"beer tubs" and sustained injuries. Id. at 131. She filed a

5 The defendant asserts that this so-called "extension" of
the mode of operation approach constitutes a new rule that may
only be applied prospectively. For the reasons stated in
Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 791 n.9
(2007), we reject this assertion.
12
negligence action against the nightclub, arguing that the
nightclub's use of the beer tubs created an inherent risk of
recurring danger meriting the application of the mode of
operation approach. Id. at 131-132. The court disagreed,
concluding instead that the traditional approach was
appropriate. Id. at 143-144.
The analogy to Konesky fails because the slippery condition
in that case arose not from third-party interference, but from
the employees' failure to wipe off the dripping wet cans and
bottles before handing them to patrons. Id. at 141 & n.11. As
the court explained, the mode of operation approach is
superfluous where the defendant, rather than a third party,
affirmatively causes the unsafe condition. Id. See Sheehan,
448 Mass. at 782-783, 786 (under traditional approach, plaintiff
must prove either that owner caused unsafe condition or had
notice of it; under mode of operation approach, foreseeability
of condition satisfies notice requirement). Although the
plaintiff in the Konesky case also argued that patrons
exacerbated the unsafe condition by carrying the dripping
beverages around the premises, the court cogently observed that
the same is true any time "a patron orders a bottle of beer at a
bar, a nightclub, or a wedding reception." Konesky, 144 Conn.
App. at 142. We agree with the Konesky court that an
establishment "does not create liability under the mode of
13
operation doctrine simply by serving chilled beer." Id. at 143.
Importantly, however, those are not the facts of this case.
Here, the nightclub's mode of operation included the sale
of beverages in plastic cups from bars located on a dance floor.
The patrons were then permitted to dance while holding their
beverages. It was reasonably foreseeable that such a mode of
operation would result in a recurring theme of cups being
jostled and liquid being jettisoned by patrons onto the dance
floor. Where that liquid is spilled on a floor, crowded with
dancers, in a dimly lit setting with flashing strobe lights, and
the only route of travel to and from the lounge area is across
that dance floor, common sense tells us that the spill creates
an unsafe condition that a patron such as the plaintiff is illsuited
to discern, except, perhaps, by the happenstance of a
slip and fall.
Although the general risk of an unsafe condition occurring
might be equally obvious to both owner and patron, under these
circumstances, the owner is in a far better position to identify
and investigate the source of the condition once it has
occurred. Sheehan, 448 Mass. at 789. Moreover, it is not
reasonable for the owner to ignore a recurring risk of danger
arising from its chosen mode of operation where it would be
reasonable to expect that a patron who has entered the
establishment for the purpose of dancing would choose to
14
encounter that risk rather than turn back. See Restatement
(Second) of Torts § 344 & comment d. Cf. Papadopoulos v. Target
Corp., 457 Mass. 368, 379 (2010) ("It is not reasonable for a
property owner to leave snow or ice on a walkway where it is
reasonable to expect that a hardy New England visitor would
choose to risk crossing the snow or ice rather than turn back or
attempt an equally or more perilous walk around"). Yet, in
cases such as this, the 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. See Sheehan, 448 Mass. at 788 ("traditional
approach requires plaintiffs to prove how long the substance
creating the hazardous condition has been on the floor, thereby
imposing an unfair burden on them to adduce evidence that is
more readily accessible to defendants"). It is apparent,
therefore, that the policies underlying the mode of operation
approach apply with the same force here as they did in Sheehan.
Fidelity to those policies demands that the mode of operation
approach be applied in this case.
At oral argument, the defendant warned of the parade of
horribles that would follow such a result. According to the
defendant, courts will begin applying the mode of operation
approach to any establishment in which patrons are permitted to
15
carry their own drinks, whether they are traveling, for example,
from a bar to a table in a restaurant or from a concession stand
to their seats at a sporting event. We dispel any such notion.
A plaintiff does not get to the jury simply by showing that an
establishment sells drinks to patrons who are then allowed to
travel about the premises. See Konesky, 144 Conn. App. at 142.
A plaintiff may get to the jury, however, by showing that
patrons who wish to travel between the bar and their seats are
forced -- as a recurring feature of the mode of operation -- to
navigate in the dark through a crowd of dancing people holding
plastic cups filled with liquid over a wooden floor. Spillage
is conceivable in either circumstance, but only in the latter is
the regularity of such spillage tied to the mode of operation in
a manner that justifies placing the business on notice of the
resulting unsafe condition. See Chiara, 152 Ariz. at 400-401.
Finally, the defendant argues that the mode of operation
approach is inappropriate on the facts of this particular case,
because there is no evidence of regular spillage or of a causal
nexus between such spillage and the plaintiff's injury. These
arguments are undercut considerably by the nightclub manager's
deposition testimony that "spills on the dance floor are part of
the business." Considering the evidence in the light most
favorable to the plaintiff, Augat, 410 Mass. at 120, the
reasonable inference is that a spilled beverage produced the wet
16
surface on which the plaintiff slipped. Cf. Leary v. Jordan
Marsh Co., 322 Mass. 309, 310 (1948) ("There was no evidence of
any wet spots upon the floor other than at the site of the
accident, except near the entrance. The absence of any evidence
of wet spots between any of the entrances and the spots in
question negatives any contention that these spots came from
water tracked in the store and indeed leaves the rain as the
source of these spots a matter of conjecture and surmise").
Whether the defendant exercised reasonable care to protect
patrons from such spillage is a question for the jury. Sheehan,
448 Mass. at 792.

Outcome: For the foregoing reasons, we conclude
that summary judgment was improperly granted and that the
defendant had notice of the inherent risks associated with its
chosen mode of operating its dance floor. We reverse the order
granting summary judgment in favor of the defendant and remand
the case to the District Court for further proceedings
consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: