Extending the Mode-of-Operation

Approach Beyond the Self-Service

Supermarket Context

WILLIAM BREKKA

ABSTRACT
In Sheehan v. Roche Brothers Supermarkets, Inc. the SJC adopted the
mode-of-operation approach to premises liability in a case involving a slipand-fall in a self-service supermarket. This approach eliminates the
traditional notice requirement where the defendants mode of operation
makes the creation of dangerous conditions reasonably foreseeable.
Recently, however, lower courts have struggled with the issue of whether
the approach applies outside of the self-service supermarket context. This
Note argues that the mode-of-operation approach should not be restricted
to the self-service supermarket context, but should be extended to
situations where the owners mode of operation makes the creation of
dangerous conditions by third parties reasonably foreseeable. While the
Sheehan decision involved a self-service supermarket, it is not clear whether
the Court intended to limit its holding to self-service businesses.
Regardless, the reasons behind the adoption of the mode-of-operation
approach logically extend to situations in which a specific mode of
operation adopted by the defendant makes the creation of dangerous
conditions by third parties, as opposed to the owner or its employees,
reasonably foreseeable. The approach stems from the notion that it is unfair
to require plaintiffs to prove notice where the owners operation methods
themselves make dangerous conditions foreseeable, especially because
owners are usually in a better position to investigate the situation than an
injured plaintiff. Because many modes of operation, other than selfservice, make the creation of dangerous conditions by customers

Juris Doctor, magna cum laude, New England Law | Boston (2014). B.A., History, cum laude,
College of the Holy Cross (2011). I would like to dedicate this Note to my parents, who
inspired me to go to law school and become a lawyer. I would also like to thank my girlfriend,
Laura, for her support and patience during the writing process.

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reasonably foreseeable, the approach should be extended to embrace these

other situations. This would allow the approach to apply to situations
analogous to a self-service supermarket and to which the approachs
rationale logically applies, without eliminating the traditional notice
requirement in all cases.

INTRODUCTION

raditionally, a premises-liability action, commonly known as a slipand-fall case, required the plaintiff to prove that the defendant had
actual or constructive knowledge of the condition that caused the
1
harm. This required proof that the dangerous condition existed long
enough to allow the owner to remedy it.2 However, in Sheehan v. Roche
Bros. Supermarkets, Inc., the Supreme Judicial Court of Massachusetts
(SJC) modified this approach and adopted the mode-of-operation
approach within the context of self-service supermarkets.3 Under this
approach, the plaintiff satisfies the notice requirement if the defendants
mode of operation makes the creation of dangerous conditions reasonably
foreseeable.4
In Sheehan, the SJC held that the mode-of-operation approach applies to
a dangerous condition created by a supermarkets self-service mode of
operation.5 Recently, however, lower courts have struggled with whether
Sheehans mode-of-operation approach applies beyond the self-service
supermarket context.6 Allowing customers to help themselves to groceries
is not, after all, the only mode of operation that makes the creation of
dangerous conditions reasonably foreseeable. 7 Some courts have limited
the approach solely to the self-service supermarket context while others
have concluded that its rationale logically extends to other situations where

See Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 1281 (Mass. 2007).
See id.
3 Id. at 1284.
4 Id. at 1283.
5 See id. at 1279, 128687.
6 See, e.g., Sarkisian v. Concept Rests., Inc., 2012 Mass. App. Div. 191, 19192 (Dist. Ct.
2012); Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *23 (D. R.I. June 15, 2010).
7 See, e.g., Sarkisian, 2012 Mass. App. Div. at 19192 (allowing nightclub patrons to bring
drinks onto a crowded dance floor); Vincequere v. L.J.B. & Assocs., No. WOCV072504A, 2009
WL 3084254, at *12 (Mass. Super. Ct. Aug. 13, 2009) (placing Mardi Gras beads on tables in a
nightclub); Marcione, 2010 WL 2697595, at *13 (allowing customers at a fast-food restaurant to
transport food to and from their table).
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the defendants mode of operation makes the creation of dangerous

conditions reasonably foreseeable.8
At its core, the mode-of-operation approach recognizes the
commonsense notion that a defendant should not escape liability simply
because a plaintiff cannot prove notice where the defendants mode of
operation already makes the creation of dangerous conditions reasonably
foreseeable.9 As a result, this Note argues that the mode-of-operation
approach should not be limited to the self-service supermarket context, but
should extend to situations in which a defendants specific mode of
operation makes the creation of dangerous conditions by third parties
reasonably foreseeable.
Part I of this Note details premises-liability law in Massachusetts,
including the traditional approach requiring the plaintiff to prove notice
and the mode-of-operation approach adopted in Sheehan. Part II examines
case law from Massachusetts and other jurisdictions that apply the modeof-operation approach. Part III discusses policy concerns surrounding the
mode-of-operation approach and its extension beyond the self-service
context, including whether the approach subjects owners to strict liability
and whether it more fairly allocates the burden of proof between the
plaintiff and defendant. Part IV of this Note argues that the mode-ofoperation approach should not be limited to the self-service supermarket
context, but should extend to situations where a defendants specific mode
of operation makes the creation of dangerous conditions by third persons
reasonably foreseeable. Part V argues that the policy concerns the SJC cited
in Sheehan for adopting the mode-of-operation approach also support its
extension beyond the self-service context. Finally, Part VI suggests that in
some situations where the mode-of-operation approach applies, the
defendant may not owe a duty to the plaintiff because an open and
obvious condition caused the harm.
I.

Premises Liability in Massachusetts

A. Traditional Approach

Premises liability is a body of tort law that affords invitees a cause of

action for physical harm sustained while on an owners land.10 Under
traditional premises-liability law, an owner is liable to an invitee for harm
caused by a condition on his or her land

8 Compare Sarkisian, 2012 Mass. App. Div. at 19192, with Mills v. Am. Multi-Cinema, Inc.,
No. ESCV201101089C, 2012 WL 6928121, at *12 (Mass. Super. Ct. Nov. 15, 2012).
9

See Sheehan, 863 N.E.2d at 128687.

See RESTATEMENT (SECOND) OF TORTS 343 (1965).

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[I]f, 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.11

Importantly, the traditional approach requires the plaintiff to prove

that the defendant had actual or constructive knowledge of the existence of
the dangerous condition which caused the harm. 12 That is, the plaintiff
must prove either that the defendant actually knew of the dangerous
condition or that the dangerous condition existed long enough that the
defendant should reasonably have been aware of it. 13 As a result, the
plaintiff usually must prove how long the condition has existed. 14 In the
slip-and-fall context, proving how long the condition existed is often a
difficult task that involves conjecture and speculation.15
B. Sheehan and the Mode-of-Operation Approach
In Sheehan v. Roche Brothers Supermarkets, Inc., the plaintiff slipped on a
grape in a grocery store and sustained severe injuries. 16 A superior court
judge granted the defendants motion for summary judgment on grounds
that the plaintiff could not prove that the defendant had prior notice of the
dangerous condition that caused his fall, an essential element under the
traditional approach to premises liability.17 On appeal, the SJC adopted a
modification of the traditional premises-liability approach, known as the
mode-of-operation approach.18 The Court noted that a modern trend in
premises liability is to modify the traditional rule within the context of selfservice grocery stores.19 Because grocery stores are now largely self-service
rather than clerk-assisted, the stores self-service mode of operation creates
a foreseeable risk that dangerous conditions may be created.20 Customers,
who generally are not as careful as a store owner or employee, may break

11

Id.
See Sheehan, 863 N.E.2d at 1280.
13 Id.
14 See id.
15 Id. at 1284.
16 Id. at 1279.
17 Sheehan, 863 N.E.2d at 127980.
18 Id. at 1284.
19 Id. at 128182.
20 Id.
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or spill items and cause them to fall on the floor.21 As a result, store owners
must exercise a degree of care commensurate with [these increased] risks
of harm.22
The mode-of-operation approach addresses these modern concerns by
eliminating the notice requirement if the defendants mode of operation
creates a foreseeable risk that a dangerous condition will occur. 23 The
plaintiff is still required to prove negligence, i.e. that the defendant failed
to act reasonably in preventing foreseeable injuries. 24 In contrast, the
burden-shifting approach, another modification to traditional premises
liability adopted by some jurisdictions, creates a rebuttable presumption of
negligence, shifting the burden to the defendant to prove that he or she
acted reasonably to prevent foreseeable harm. 25 In adopting the mode-ofoperation approach, the SJC emphasized its fairness, noting that when a
plaintiff is injured on the defendants premises, it is unjust to saddle the
plaintiff with the burden of isolating the precise failure that caused an
injury, particularly where a plaintiffs injury results from a foreseeable risk
of harm stemming from an owners mode of operation.26
II. Does the Mode-of-Operation Approach Apply Outside of the SelfService Supermarket Context?
A. Massachusetts Courts Are Conflicted as to How the Mode-ofOperation Approach Applies
Since Sheehan, Massachusetts courts, and federal courts applying
Massachusetts law, have struggled deciding whether the mode-ofoperation approach applies outside of the self-service context.27 In most
cases, courts have declined to extend Sheehan beyond the self-service
context.28 A few courts, however, have recently been willing to.29

21

Id. at 1282.
Id.
23 Sheehan, 863 N.E.2d at 1283.
24 Id.
25 Id. at 128384.
26 Id. at 1284 (citing Wollerman v. Grand Union Stores, Inc., 221 A.2d 513 (N.J. 1966)).
27 See, e.g., Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *12 (D. R.I. June 15,
2010); Sarkisian v. Concept Rest., Inc., 2012 Mass. App. Div. 191, 19192 (Dist. Ct. 2012).
28 See, e.g., Sarkisian, 2012 Mass. App. Div. at 19192; Tavernese v. Shaws Supermarkets,
Inc., No. 07-P-1829, 2008 WL 2726318, at *1 (Mass. App. Ct. July 15, 2008) (unpublished table
decision); Pittsley v. Saunstar Land Co., No. 06-P-1532, 2007 WL 2580485, at *1 n.4 (Mass. App.
Ct. Sept. 7, 2007) (unpublished table decision); Marzilli v. UMass Meml Med. Ctr., Inc., No.
WOCV201002623B, 2012 WL 6616871, at *12 (Mass. Super. Ct. Aug. 29, 2012); Yeshulas v.
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Decisions Declining to Extend the Mode-of-Operation

Approach

In Sarkisian v. Concept Restaurants, Inc., the plaintiff slipped on a puddle

of liquid on a nightclubs dance floor and broke her leg.30 The nightclub
permitted patrons to bring their drinks onto the dance floor.31 The trial
court granted summary judgment for the defendant and the plaintiff
appealed to the Appellate Division of the District Court. 32 The defendant
argued that summary judgment was proper because the case was governed
by the traditional approach to premises liability and the plaintiff could not
prove that the defendant caused the spill or had actual or constructive
knowledge of it.33 The plaintiff, however, argued that the mode-ofoperation approach adopted in Sheehan applied to the case because the
defendants mode of operationallowing patrons to bring drinks onto the
dance floorcreated a reasonably foreseeable risk that drinks would be
spilled on the floor.34
The court held that the mode-of-operation approach only applies in the
self-service context.35 Since patrons did not serve themselves, but rather
were served by employees upon request, the nightclub was not a selfservice establishment.36 As a result, the traditional approach applied,
requiring the plaintiff to prove notice of the dangerous condition. 37
However, the court made clear that it based its refusal to apply the modeof-operation approach on the fact that it could not find any cases extending
the approach beyond the self-service context.38 Further, it suggested that
the approach should apply to situations like this, noting: The
[defendants] mode of operation of allowing patrons to bring their drinks

Macys Retail Holdings, Inc., No. SUCV200903509G, 2012 WL 3193528, at *12 (Mass. Super.
Ct. June 13, 2012); Frank v. Westwood Assocs., Inc., No. 071798, 2008 WL 1799765, at *2 (Mass.
Super. Ct. Apr. 1, 2008).
29

See, e.g., Mills v. Am. Multi-Cinema, Inc., No. ESCV201101089C, 2012 WL 6928121, at *1
2 (Mass. Super. Ct. Nov. 15, 2012); Marcione, 2010 WL 2697595, at *3; Vincequere v. L.J.B. &
Associates, Inc., No. WOCV072504A, 2009 WL 3084254, at *12 (Mass. Super. Ct. Aug. 13,
2009).
30

2012 Mass. App. Div. at 191.

Id.
32 Id.
33 Id.
34 Id.
35 Id. at 192.
36 Sarkisian, 2012 Mass. App. Div. at 192.
37 Id.
38 Id. at 192 n.2.
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onto a crowded dance floor all but guarantees spillage and presents a real
risk of injury. Over time, in cases such as this, it may be that the law will be
expanded.39
In Tavernese v. Shaws Supermarkets, Inc., the Massachusetts Appeals
Court held, in an unpublished decision, that the mode-of-operation
approach did not apply where the plaintiff slipped and fell in the entrance
to a supermarket.40 The court reasoned that Sheehan only alleviated the
plaintiffs burden to prove notice where the dangerous condition resulted
from the stores self-service mode of operation.41 Since the stores selfservice mode of operation did not cause the slippery condition in the
stores entrance, Sheehans mode-of-operation approach did not apply.42
Instead, the court concluded that the case was properly governed by Wexler
v. Stanetsky Memorial Chapel of Brookline, Inc.,43 which held that negligence
on the part of the premises owner cannot be found where transitory
conditions . . . due to normal use in wet weather, according to ordinary
experience could not in reason have been prevented.44
Similarly, in Yeshulas v. Macys Retail Holdings, Inc., a superior court
judge held that Sheehans mode-of-operation approach did not apply where
a plaintiff slipped on water in an aisle at Macys.45 The judge noted that
Massachusetts courts have been unwilling to expand the mode-ofoperation test beyond the self-service context, and since the record did not
demonstrate that the defendants self-service mode of operation caused her
fall, the approach did not apply.46 As in Tavernese, the case was governed
by the transitory-condition doctrine set forth in Wexler.47
The Massachusetts Appeals Court has also held that Sheehan did not
apply where a construction worker fell down a flight of stairs at a
construction site, noting that Sheehan only applies to certain self-service
retail defendants and did not modify the traditional approach to premises

39

Id.
No. 07-P-1829, 2008 WL 2726318, at *1 (Mass. App. Ct. July 15, 2008) (unpublished table
decision). The plaintiff slipped on a combination of ice, slush, and water as she walked
through the main entrance of the supermarket. Tavernese v. Shaws Supermarket, Inc., No. 052080, 2007 WL 5086440 (Mass. Super. Ct. Aug. 27, 2007).
40

41

Tavernese, 2008 WL 2726318, at *1.

Id.
43 See 321 N.E.2d 686 (Mass. App. Ct. 1975).
44 Tavernese, 2008 WL 2726318, at *1 (quoting Wexler, 321 N.E.2d at 687).
45 No. SUCV200903509G, 2012 WL 3193528, at *23 (Mass. Super. Ct. June 13, 2012).
46 Id. at *2.
47 See id. at *3.
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liability for other cases.48 In Frank v. Westwood Associates, Inc., a superior

court judge held that a condominium complex is not the type of self-service
business to which the rationale and holding of Sheehan applies.49 A superior
court judge also held that Sheehan did not apply to a case where the
plaintiff tripped as she entered a hospital elevator. 50 The court reasoned
that Sheehan is inapplicable to non-retail store cases, noting that throughout
the Sheehan opinion reference is made to slip and falls resulting from
stepping on fruits and vegetables in retail stores and the unique nature of
self-service grocery stores.51
2.

Decisions Extending the Mode-of-Operation Approach

Some courts, however, have been willing to extend Sheehan beyond the
self-service context.52 For example, in Mills v. American Multi-Cinema, a
superior court judge held that Sheehan could apply to a slip-and-fall in a
movie theatre.53 In that case, the plaintiff slipped and fell on some ice in a
dark movie theatre and sustained significant injuries.54 In holding that
Sheehans mode-of-operation approach could apply, the court reasoned that
the dark movie theatre, coupled with the fact that patrons could purchase
food and drinks and bring them into the theatre, created a uniquely
dangerous environment.55 Patrons are unlikely to see things like spilled
food and beverages on the floor, creating a foreseeable risk of dangerous
conditions.56 As a result, the traditional approach to premises liability is
inadequate to the task of providing reasonable safety conditions, and it is
up to a jury to decide whether or not the frequency and mode of
inspections and maintenance employed by the owner or operator is
reasonable.57
In Vincequere v. L.J.B. & Associates, Inc., a superior court judge held that
the mode-of-operation approach could apply where the plaintiff slipped on

48

Pittsley v. Saunstar Land Co., No. 06-P-1532, 2007 WL 2580485, at *1 & n.4 (Mass. App.
Ct. Sept. 7, 2007) (unpublished table decision).
49 No. 071798, 2008 WL 1799765, at *2 (Mass. Super. Ct. Apr. 1, 2008).
50 Marzilli v. UMass Meml Med. Ctr., Inc., No. WOCV201002623B, 2012 WL 6616871, at *1
2 (Mass. Super. Ct. Aug. 29, 2012).
51

Id.
See infra text accompanying notes 5367.
53 Mills v. Am. Multi-Cinema, Inc., No. ESCV201101089C, 2012 WL 6928121, at *12 (Mass.
Super. Ct. Nov. 15, 2012).
52

54

Id. at *1.
Id. at *12.
56 See id.
57 Id. at *2.
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a string of Mardi Gras beads at a nightclub. 58 The defendant nightclub

handed out Mardi Gras beads to guests as they arrived, and the plaintiffs
alleged that at least four to five strands of beads were placed on each table
in the club.59 The defendant moved for summary judgment on grounds that
(1) the traditional approach to premises liability applied, and (2) the
plaintiff could not prove that the defendant had actual or constructive
notice that the beads were on the floor.60 The court denied the defendants
motion, holding that the mode-of-operation test could apply and there was
a material issue as to whether the defendant created a reasonably
foreseeable risk of harm by handing out beads and placing them on the
tables.61 The court reasoned that the situation was comparable to that in
Sheehan:
Just as the supermarkets mode of operation in providing a selfservice grape display accessible to customers created a
foreseeable risk that an errant grape would roll onto the floor and
cause a hazardous condition, if L.J.B. placed several strings of
beads on each table at the beginning of a Mardi Gras event, it
could be reasonably foreseeable that patrons would pick up the
beads and that, during the course of the festivities, beads would
end up on the floor.62

Applying Massachusetts law in a diversity action, the United States

District Court for the District of Rhode Island held in Marcione v. Jan Co.
that the mode-of-operation approach could apply to fast food restaurants. 63
In that case, a customer at a Burger King slipped and fell on some greasy
food items as he walked toward a trash receptacle to discard his trash and
return his tray.64 In holding that the mode-of-operation approach applied,
the court reasoned that there was no language in Sheehan expressly limiting
its holding to self-service grocery stores.65 Further, its logic applies equally
to fast food restaurants, where patrons transport their food to or from their
table, as to self-service grocery stores.66 In both situations, it is reasonably
foreseeable that food items may be dropped on the floor by customers,

58

No. WOCV072504A, 2009 WL 3084254, at *12 (Mass. Super. Ct. Aug. 13, 2009).
Id. at *1.
60 Id.
61 Id. at *2.
62 Id.
63 No. 09-591ML, 2010 WL 2697595, at *3 (D. R.I. June 15, 2010).
64 Id. at *1.
65 Id. at *3.
66 Id.
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creating dangerous conditions.67

B. Decisions of Other Jurisdictions
Massachusetts is not the only jurisdiction that has wrestled with the
question of whether the mode-of-operation test extends beyond the selfservice context.68 One such jurisdiction is the state of Nevada.69 In Sprague
v. Lucky Stores, Inc.,70 the Supreme Court of Nevada implicitly adopted the
mode-of-operation approach to premises liability.71 As in Sheehan, the
plaintiff in Sprague slipped on a grape and fell in a self-service grocery
store.72 In FGA, Inc. v. Giglio, however, the Supreme Court of Nevada
declined to extend the mode-of-operation test beyond the self-service
context to encompass a slip-and-fall in a sit-down restaurant.73 The court
reasoned that absent a showing that the owners created a foreseeable risk
of hazardous conditions by having customers perform tasks traditionally
performed by employees, the mode-of-operation approach did not apply.74
In 1983, the Supreme Court of Washington adopted the mode-ofoperation approach in Pimentel v. Roundup Co.75 In Iwai v. State, however,
the Court split over whether the mode-of-operation approach extends
beyond the self-service context.76 In that case, the plaintiff slipped and fell
on a patch of snow or ice on an inclined section of the defendants parking
lot.77 Although the plaintiffs evidence concerning notice was likely
insufficient to survive a motion to dismiss, the Court considered whether
the plaintiff could proceed under the mode-of-operation, or reasonably
foreseeable, exception to the traditional notice requirement.78
Acknowledging that the reasonably foreseeable exception had only been
applied to self-service stores, a plurality (four) of the justices argued that it
should abandon the self-service requirement and apply the mode-of-

67

Id.
See, e.g., Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 25960, 265 (Fla.
2002); FGA, Inc. v. Giglio, 278 P.3d 490, 493 (Nev. 2012); Iwai v. State, 915 P.2d 1089, 1096, 1098
(Wash. 1996).
68

69

See, e.g., Giglio, 278 P.3d at 493.

849 P.2d 320 (Nev. 1993).
71 Giglio, 278 P.3d at 497 (citing Sprague, 849 P.2d at 323).
72 Sprague, 849 P.2d at 322.
73 Giglio, 278 P.3d at 497.
74 Id.
75 666 P.2d 888, 89293 (Wash. 1983).
76 See 915 P.2d 1089, 1096, 1098 (Wash. 1996).
77 Id. at 1090.
78 Id. at 1095.
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operation approach to any situation where the defendants mode of

operation makes the existence of dangerous conditions reasonably
foreseeable.79 The plurality cited a few reasons for eliminating the selfservice requirement. For one, it avoids creative maneuvering by courts
and litigants attempting to characterize various businesses as self-service
operations in order to fit them into the exception. 80 Further, extending the
exception makes premises liability even-handedstrictly applying the
notice requirements in situations where dangerous conditions are
reasonably foreseeable would unfairly allow defendants to plead ignorance
about the dangerous condition despite their general knowledge of the
situation.81
The other five justices, however, did not agree that the reasonably
foreseeable exception should be extended beyond the self-service context.82
Although concurring with the result, Justice Alexander dissented from the
pluralitys expansion of the exception beyond the self-service context.83
Justice Alexander argued that expanding the exception would create
confusion for occupiers of land, landlords, insurers, trial judges, and
practitioners, while substantively affording plaintiffs no more protection
than the traditional approach.84 The remaining four justices also dissented
from the pluralitys extension of the reasonably foreseeable exception,
arguing that nothing in prior precedent supports such an extension and
that the traditional approach adequately protects invitees. 85 Since this
decision, the Court of Appeals of Washington has been reluctant to follow
the pluralitys lead and extend the Pimentel exception beyond the selfservice context.86
Florida has also weighed in on the issue.87 In Owens v. Publix
Supermarkets, Inc., the Supreme Court of Florida adopted the mode-of-

79

Id. at 1096.
See id.
81 See id. at 1097.
82 Iwai, 915 P.2d at 109798.
83 Id. at 1098.
84 Id.
85 See id.
86 See, e.g., Fredrickson v. Bertolinos Tacoma, Inc., 127 P.3d 5, 7, 910 (Wash. Ct. App.
2005) (declining to extend the Pimentel exception where the plaintiff was injured by sitting in a
broken chair); Casey v. Safeway, Inc., No. 43882-4-I, 1999 WL 1033565, at *23 (Wash. Ct. App.
Nov. 15, 1999) (declining to extend the Pimentel exception where plaintiff slipped and fell at a
checkout counter in a store).
80

87

E.g., Markowitz v. Helen Homes of Kendell Corp., 826 So. 2d 256, 25961, 265 (Fla. 2002).

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operation approach.88 In Markowitz, a majority opinion held that the modeof-operation approach was not limited to self-service supermarkets,
stating: The mode of operation theory of negligence is not a new principle
of law and is not unique to a particular business.89 As a result, the Court
held that the approach applied where the plaintiff slipped on a grape in a
nursing home and alleged that the grape ended up on the floor because of
the homes mode of operation of allowing residents to carry their food
from the dining room to their rooms.90 Two dissenting justices, however,
disagreed that the mode-of-operation approach could apply to the case.91
These justices argued that the mode-of-operation approach was adopted in
light of the changing nature of supermarkets and other retail stores and the
difficulty of litigating slip-and-fall cases involving such establishments.92
Because of this, the mode-of-operation approach was meant to apply solely
to supermarkets and retail establishments and should not extend to cases
involving nursing homes, especially given the lack of a difficult history in
litigating such cases and the important role that nursing homes play in
caring for the elderly.93
Connecticut also follows the mode-of-operation approach and has
recently struggled with the doctrines scope.94 The Supreme Court of
Connecticut adopted the mode-of-operation approach to premises liability
in Kelly v. Stop & Shop, Inc.95 In Kelly, the plaintiff slipped and fell while
making a salad at a self-service salad bar in the defendants supermarket.96
Adopting the mode-of-operation approach, the Court stated that a
plaintiff establishes a prima facie case of negligence upon presentation of
evidence that the mode of operation of the defendants business gives rise
to a foreseeable risk of injury to customers and that the plaintiffs injury
was proximately caused by an accident within the zone of risk.97 Because
customers serving themselves at the salad bar regularly caused food to fall

88

802 So. 2d 315, 332 (Fla. 2001). The Florida legislature later reinstated the traditional
approach requiring that the plaintiff prove notice. David M. Gagnon & Gina A. Peretti, Section
768.0755, Florida Statutes: Reinstating the Traditional Premises Liability Doctrine, TRIAL ADVOC.
Q., Spring 2011, at 23, 23.
89

Markowitz, 826 So. 2d at 260.

Id. at 261.
91 Id. at 263 (Wells, J., dissenting).
92 Id. at 264.
93 Id.
94 See Fisher v. Big Y Foods, Inc., 3 A.3d 919, 921 (Conn. 2010).
95 918 A.2d 249, 252 (Conn. 2007).
96 Id.
97 Id. at 263.
90

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on the floor, the salad bar created a reasonably foreseeable risk of danger. 98
Although the facts of the case concerned a self-service operation, the Court
did not expressly limit its holding to self-service businesses.99
In Fisher, however, the Supreme Court of Connecticut implied that the
mode of operation only applies within the context of self-service
establishments.100 Beyond this, the Court held that the fact that the injury
occurred within a self-service business is not enough to trigger application
of the mode-of-operation approach.101 Rather, the plaintiff must
demonstrate that a more specific method of operation within a self-service
retail environment gave rise to a foreseeable risk of a regularly occurring
hazardous condition similar to the particular condition that caused the
injury.102 As a result, the Court held that the plaintiff was not entitled to
proceed under the mode-of-operation approach when she slipped on fruit
cocktail syrup, which had leaked out of a packaged fruit product that had
fallen on the floor, because she had not introduced any evidence that the
defendants method of displaying the fruit products made their spillage
inherently foreseeable or regularly occurring.103
III. Policy Arguments Surrounding the Mode-of-Operation Approach
A. Strict Liability for Store Owners
One critique of the mode-of-operation approach is that it will subject
store owners to strict liability for injuries occurring on their premises. 104
Some argue that in many cases applying the mode-of-operation approach,
courts have not required the plaintiff prove a causal connection between
the defendants negligent mode of operation and the injury sustained. 105 As
a result, the trier of fact is allowed to impose liability whenever a plaintiff
proves that the defendants mode of operation created a foreseeable risk of
harm, even though the actual injury was not a result of that mode of
operation.106 While some courts claim to still require the plaintiff prove that

98

Id. at 264.
See id. at 26364.
100 See Fisher v. Big Y Foods, Inc., 3 A.3d 919, 92728 (Conn. 2010).
101 Id. at 928.
102 Id. (emphasis in original).
103 Id. at 936.
104 See Steven D. Winegar, Comment, Reapportioning the Burden of Uncertainty: Storekeeper
Liability in the Self-Service Slip-and-Fall Case, 41 UCLA L. REV. 861, 888 (1994) (outlining
multiple cases across the nation where strict liability was imposed).
99

105
106

Id.
Id.

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the defendant acted unreasonably, it is not entirely clear what this means
and there remains a risk that the causation issue will be ignored, leaving
the trier of fact free to impose strict liability.107
Not all agree, however, that the mode-of-operation approach is the
equivalent of strict liability.108 Some argue that the approach merely
removes the plaintiffs burden to prove notice; it does not remove the
plaintiffs burden to prove that the defendant acted unreasonably under
the circumstances.109 As the Supreme Judicial Court stated in Sheehan:
Adoption of this approach would not hold owners strictly liable
to all plaintiffs involved in slip-and-fall accidents on their
premises, but would only make an owner liable if the owner
could reasonably foresee that a dangerous condition exists and
failed to take adequate steps to forestall resulting injuries. A
plaintiff would still be required to present evidence supporting
his or her case and to bear the burden of persuading the trier of
fact that the defendant acted unreasonably in the
circumstances.110

The Supreme Court of Connecticut has expressed a similar sentiment,

noting that a proprietor of a self-service retail operation is [negligent]
only if he fails to use reasonable care under the circumstances to discover
the foreseeable dangerous condition and to correct it or to warn customers
of its existence.111 Consequently, premises owners can take steps to
reduce the likelihood of being held liable for injuries occurring on their
premises, such as instituting operational procedures to prevent hazardous
conditions from occurring and keeping maintenance logs. 112 Implementing
and carrying out these procedures can help a premises owner assert a
strong defense to a slip-and-fall claim under the mode-of-operation
approach.113

107

See id.
See, e.g., Kelly v. Stop & Shop, Inc., 918 A.2d 249, 26263 (Conn. 2007); Sheehan v. Roche
Bros. Supermarkets, Inc., 863 N.E.2d 1276, 128586 (Mass. 2007).
108

109

Sheehan, 863 N.E.2d at 128586.

Id. at 1286.
111 Kelly, 918 A.2d at 263 (quoting Safeway Stores, Inc. v. Smith, 658 P.2d 255, 258 (Colo.
1983)).
110

112

See Renee W. Dwyer & Russell N. Jarem, Slip and Fall in Aisle Four: Modern Premises
Liability Challenges to Retail Operations, FOR THE DEF., Feb. 2012, at 46, 50; Roy A. Cohen &
Jeffrey M. Pyzpcznski, Defending Property Owners in Toxic and Hazardous Substances-Related
Premises Liability Litigation, 74 DEF. COUNSEL. J. 35, 46 (2007).
113

See Dwyer & Jarem, supra note 112.

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B. Fairness to the Plaintiff

One reason the SJC adopted the mode-of-operation approach in
Sheehan was the unfairness in requiring the plaintiff to prove notice where
the defendants mode of operation makes the creation of dangerous
conditions reasonably foreseeable.114 As the court noted:
We also find persuasive the idea that when a plaintiff is injured
on the defendants premises, it is unjust to saddle the plaintiff
with the burden of isolating the precise failure that caused an
injury, particularly where a plaintiffs injury results from a
foreseeable risk of harm stemming from an owners mode of
operation. This is because an injured customer may not be able to
conduct an immediate investigation or determine the exact
origins of the accident, whereas the store is readily able to
investigate,
interview
witnesses
and
make
relevant
observations.115

This view is part of an overall trend in premises liability to retreat from

the traditional requirement that the plaintiff prove notice. 116 Courts realized
that it was often very difficult for a plaintiff to prove that a defendant was
on notice of a dangerous condition.117 It is the defendant, after all, who has
access to the evidence and is readily able to investigate, interview
witnesses, and make relevant observations.118
However, others have criticized this new approach as unfairly
burdening businesses.119 For example, defense attorneys as well as the
business community criticized the Florida Supreme Courts decision in
Owens, which adopted the mode-of-operation approach and shifted the
burden of proof to the defendant. 120 They argued that the decision
[opened the] floodgates to frivolous lawsuits and undermine[d] the

114

See Sheehan, 863 N.E.2d at 128485.

Id. (citations omitted).
116 See Barry Ravech, Tort LawSlip and Fall in SupermarketNew Standard of LiabilityThe
Mode-of-operation approach, 91 MASS. L. REV. 87, 8889 (2008) (noting that a number of
jurisdictions have shifted from the traditional approach to the modern approach because of
the changes to grocery stores, which have gone from clerk-assisted to self-service
operations).
115

117 See id.; Venus Zilieris, Floridas Slip and Fall Law, Abandoned and Re-Established: Owens v.
Publix Supermarkets, Inc. Versus Floridas Legislature: A Tug of War on Who Bears the Burden of
Proof, 27 NOVA L. REV. 191, 21819 (2002) (noting that in the past, supermarkets had a history
of winning slip-and-fall cases, and therefore did not pay much attention to them or do much
to improve their maintenance procedures).
118

Sheehan, 863 N.E.2d at 1285; Ravech, supra note 116, at 89.

See Zilieris, supra note 117, at 21718.
120 See id. at 217.
119

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fundamental principle that plaintiffs bear the burden of proof in

negligence actions.121 Some even went so far as to argue that the Owens
decision was economically motivated: This is just another example of
shifting financial responsibility to those that the judicial system perceives
can afford to pay.122 Due to the strong opposition to Owens, the Florida
Retail Association formed the Banana Peel Coalition and successfully
lobbied the legislature to effectively overrule Owens and reinstate the
traditional notice requirement.123
C. Open and Obvious Danger
While the mode-of-operation approach as adopted by the SJC relieves
the plaintiff of proving that the defendant had knowledge of the dangerous
condition, the issue remains as to whether store owners must deal with
open and obvious dangers.124 Under the open and obvious danger
theory, [t]here is no duty to protect lawful visitors from dangers obvious
to persons of ordinary intelligence.125 Because a customer at a store can
reasonably assume that the items being sold might fall on the floor, the
defendant may argue that it did not owe a duty to protect the plaintiff from
such an open and obvious danger.126

ANALYSIS
IV. The Sheehan Mode-of-Operation Approach Should Not Be Limited to
the Self-Service Supermarket Context
A. The Sheehan Opinion Does Not Limit the Mode-of-Operation
Approach to Self-Service Supermarkets
The Sheehan case involved a slip-and-fall accident occurring in a selfservice supermarket.127 In its analysis, the SJC explained that the modern
trend towards modifying the traditional premises liability approach was
largely brought on by the fact that grocery stores have changed from
individualized clerk-assisted operations to self-service operations.128 Yet

121

Id. at 218.
Id. at 21718.
123 Zilieris, supra note 117, at 21921; Gagnon & Peretti, supra note 88, at 23.
124 See Ravech, supra note 116, at 9192.
125 Lyon v. Morphew, 678 N.E.2d 1306, 1310 (Mass. 1997).
126 See Ravech, supra note 116, at 9192 & n.65.
127 Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 127980 (Mass. 2007).
128 Id. at 128182.
122

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it is not entirely clear whether the SJC intended to limit the approach solely
to cases involving self-service businesses.129 On the one hand, in explaining
the mode-of-operation approach, the Court often refers to self-service
businesses and the foreseeable risks that such a mode of operation creates
for customers, suggesting that the approach applies solely to self-service
supermarkets.130 On the other hand, however, the Court may have simply
focused on self-service supermarkets because that was the type of business
at issue in the case, not because they are the only sort of business to which
the mode-of-operation approach applies.131
In summarizing its holding, the SJC stated: [I]f a plaintiff proves that
an unsafe condition on an owners premises exists that was reasonably
foreseeable, resulting from an owners self-service business or mode of
operation, and the plaintiff slips as a result of the unsafe condition, the
plaintiff will satisfy the notice requirement.132 This quotation is
ambiguousit is not clear whether the Court meant that the approach only
applies to self-service businesses and self-service modes of operation, or if
it applies to self-service businesses and any other mode of operation that
creates a reasonably foreseeable risk of harm, whether self-service or not.133
However, in refuting the claim that the mode-of-operation approach
subjects owners to strict liability, the Court did not use language limiting
the approach to self-service supermarkets.134 Rather, the Court explained
that proof of a particular mode-of-operation simply substitutes for the

129 See Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *3 (D.R.I. June 15, 2010).
Compare Sarkisian v. Concept Rest., Inc., 2012 Mass. App. Div. 191, 19192 (Dist. Ct. 2012), with
Mills v. Am. Multi-Cinema, Inc., No. ESCV201101089C, 2012 WL 6928121, at *12 (Mass.
Super. Nov. 15, 2012).
130

See Sheehan, 863 N.E.2d at 1282.

In a self-service grocery store, merchandise is easily accessible to
customers, which results in foreseeable spillage and breakage that
customers may encounter while shopping . . . . Spillage and breakage is
attributable to customers who generally may not be as careful and
vigilant as a store owner because customers are not focused on the
owners concern of keeping items off the floor to avoid potential
foreseeable risks of harm to other patrons.

Id.
131

See id. at 1283 (noting that the mode-of-operation approach applies where an owners
chosen mode of operation makes it reasonably foreseeable that a dangerous condition will
occur); see also Marcione, 2010 WL 2697595, at *3 ([T]here is nothing contained in Sheehan
expressing the SJCs intent to limit its holding to self-service grocery stores . . . .).
132

Sheehan, 863 N.E.2d at 1286 (emphasis added).

See id.
134 See id. at 128586.
133

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traditional elements of a prima facie case.135 The fact that the SJC simply
referred to proof of a particular mode of operation, not a self-service
mode of operation, suggests that the SJC may not have intended to limit
the approach to self-service modes of operationas long as the owners
particular mode of operation makes the creation of dangerous conditions
reasonably foreseeable, the approach should apply.136
Regardless of whether the language in Sheehan limits the approach to
self-service businesses, the reasons the SJC cited for adopting the approach
apply equally to any mode of operation that makes the creation of
dangerous conditions reasonably foreseeable. 137 In adopting the approach,
the SJC reasoned that it is unjust to saddle the plaintiff with the burden of
isolating the precise failure that caused an injury, particularly where a
plaintiffs injury results from a foreseeable risk of harm stemming from an
owners mode of operation.138 Whether the owners mode of operation is
fully self-service, like a modern grocery store, or not fully self-service, such
as a bar that allows patrons to bring drinks onto a dance floor 139 or a fastfood restaurant,140 it is equally unfair to saddle the plaintiff with the burden
of proving notice and isolating the precise failure.141 In each situation, the
creation of dangerous conditions is reasonably foreseeable,142 and the
injured customer may not be able to conduct an immediate investigation
or determine the exact origins of the accident, whereas the store is readily

135 Id. (quoting Chiara v. Frys Food Stores of Ariz., Inc., 733 P.2d 283, 285 (1987))
(emphasis added); see also id. at 1286 ([T]he trier of fact must determine whether the owner
could reasonably foresee or anticipate that a foreseeable risk stemming from the owners
mode of operation could occur.).
136

See id. at 1286.

See id. at 128485.
138 Sheehan, 863 N.E.2d at 1284 (quoting Wollerman v. Grand Union Stores, Inc., 221 A.2d
513, 515 (N.J. 1966)).
139 See Sarkisian v. Concept Restaurants, Inc., 2012 Mass. App. Div. 191, 191 (Dist. Ct.
2012).
140 See Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *1 (D. R.I. June 15, 2010).
141 Cf. Sheehan, 863 N.E.2d at 1284.
142 See Sarkisian, 2012 Mass. App. Div. at 192 n.2 (The Liquor Stores mode of operation of
allowing patrons to bring their drinks onto a crowded dance floor all but guarantees spillage
and presents a real risk of injury.); see also Marcione, 2010 WL 2697595, at *3.
137

Just as it is reasonably foreseeable that a customer might drop a grape on

the floor while selecting (or sampling) grapes from a self-service display
in a grocery store, it is equally foreseeable that a customer in a fast food
restaurant might drop a food item on the floor while transporting (or
sampling) food on a self-service tray while walking to or from his table.
Id.

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able to investigate, interview witnesses, and make relevant

observations.143 In addition, by quoting comment e of the Restatement
(Second) of Torts 343, which provides that 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 SJC suggested
that the mode-of-operation approach is appropriately applied to a widerange of businesses, not just self-service supermarkets.144
B. The Mode-of-Operation Approach Should Be Limited to Situations
Where a Defendants Specific Mode of Operation Makes the Creation
of Dangerous Conditions By Third Parties Reasonably Foreseeable
While the mode-of-operation approach should not be limited to cases
involving self-service supermarkets, it should be limited to situations
where an owners specific mode of operation makes the creation of
dangerous conditions by third parties, as opposed to the owner or the
owners employees, reasonably foreseeable.145 In Sheehan, the SJC held that
it did not intend to modify the general rule that a plaintiff must prove that
the owner had actual or constructive knowledge of a dangerous
condition.146 Extending the mode-of-operation approach to all premises
liability cases would nearly eliminate this general rule.147

143

See Sheehan, 863 N.E.2d at 1285.

See RESTATEMENT (SECOND) OF TORTS 343 cmt. 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.); see Sheehan, 863 N.E.2d at 1284; see also Mills v. Am. Multi-Cinema, Inc.,
No. ESCV201101089C, 2012 WL 6928121, at *1 (Mass. Super. Ct. Nov. 15, 2012) (noting the
SJCs reference to the Restatement in order to support applying the mode-of-operation
approach to a movie theater).
144

145 See Sheehan, 863 N.E.2d at 128687 ([A] store owner will be liable to a plaintiff injured
as a result of a dangerous condition caused by a third party only if the owner could reasonably
foresee that the dangerous condition could occur, resulting from the owners chosen mode of
operation, and the owner took inadequate steps to forestall resulting injuries.) (emphasis
added); see also FGA, Inc. v. Giglio, 278 P.3d 490, 497 (Nev. 2012) (declining to extend the
mode-of-operation approach to a sit-down restaurant because the owners have not created
the increased risk of a potentially hazardous condition by having their customers perform
tasks that are traditionally carried out by employees). Contra Iwai v. State, 915 P.2d 1089,
1096 (Wash. 1996) (plurality opinion) (arguing that the mode-of-operation approach should
apply to any situation where the nature of the owners business makes the creation of
dangerous conditions reasonably foreseeable).
146
147

Sheehan, 863 N.E.2d at 128687.

See id.; see also Iwai, 915 P.2d at 1098 (Guy, J., concurring and dissenting) (disagreeing

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Further, one of the SJCs main justifications for adopting the approach
is that customers generally will be less careful than store owners and
employees in avoiding dangerous conditions.148 It is therefore reasonable
for store owners to exercise a higher degree of care in such
circumstances.149 Whether the business at issue is a self-service
supermarket, fast-food restaurant, or nightclub allowing patrons to bring
drinks onto a dance floor, there is a reasonable likelihood that customers
will be less careful than the store owner in preventing the creation of
hazardous conditions.150 As a result, it is consistent with the rationale
behind the approach to apply it to all situations where the owners mode of
operation makes the creation of dangerous conditions by third parties
reasonably foreseeable, not just those where the business employs a selfservice mode of operation.151 This would also relieve courts of determining
whether a business is self-service (not always a simple task)152 and allow
the approach to apply to businesses that are not fully self-service but
nonetheless require or allow patrons to engage in activities that create a
risk of harm to others.153
The mode-of-operation approach also should only extend beyond the
self-service supermarket context where the owner employs a particular or
unique mode of operation that makes the creation of dangerous conditions

that the mode-of-operation approach applies to any dangerous condition and noting that it
does not extend to the general rule that an owner must have actual or constructive notice of a
dangerous condition).
148

See Sheehan, 863 N.E.2d at 1282.

See id.
150 See id. at 128687; see also Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *1 (D.
R.I. June 15, 2010); Sarkisian v. Concept Rest., Inc., 2012 Mass. App. Div. 191, 19192 (Dist. Ct.
2012).
151 See, e.g., Jasko v. F.W. Woolworth Co., 494 P.2d 839, 840 (Colo. 1972) (selling pizza slices
without providing anywhere for customers to sit created a foreseeable risk that customers
would drop pizza on the floor); Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256,
261 (Fla. 2002) (allowing nursing home residents to carry food from the dining room to their
own rooms created a foreseeable risk that residents would drop food on the floor); Wells v.
Palm Beach Kennel Club, 35 So. 2d 720, 721 (Fla. 1948) (selling bottled drinks to patrons
without providing anywhere to dispose of them created a foreseeable risk that patrons would
leave bottles on the ground); Sarkisian, 2012 Mass. App. Div. at 192 n.2 (allowing patrons to
bring drinks onto the dance floor created a foreseeable risk that patrons would spill their
drinks on the floor).
152 See Iwai, 915 P.2d at 1097 (plurality opinion).
153 See, e.g., Sarkisian, 2012 Mass. App. Div. at 192 n.2; Mills v. Am. Multi-Cinema, Inc., No.
ESCV201101089C, 2012 WL 6928121, at *12 (Mass. Super. Ct. Nov. 15, 2012); Marcione, 2010
WL 2697595, at *3.
149

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by third parties reasonably foreseeable. 154 Such a mode of operation might

include having third parties perform tasks that employees traditionally
perform,155 or placing customers in situations that make the creation of
dangerous conditions reasonably foreseeable.156
Requiring a unique mode of operation involving third parties will
prevent courts from applying the mode-of-operation approach in cases
where the harm stems from conditions caused by third parties that are
inherent in nearly all businesses.157 For example, in Tavernese v. Shaws
Supermarkets, Inc., the Massachusetts Appeals Court declined to apply the
mode-of-operation approach to a case in which the plaintiff slipped and fell
on water and slush in the entryway to a supermarket. 158 The court reasoned
that the stores self-service mode of operation did not factor into the
creation of the condition at issue.159 Further, the court noted that these type
of slip-and-fall cases are governed by a separate and established line of
cases which hold that negligence on the part of the premises owner
cannot be found where transitory conditions . . . due to normal use in wet
weather, according to ordinary experience could not in reason been
prevented.160
Extending the mode-of-operation approach to such cases would
essentially eliminate the traditional premises liability approach, which the
Sheehan court did not intend.161 However, limiting it to cases in which third
parties perform tasks traditionally performed by employees or engage in
some other unique activity is in line with the basic premise behind the

154

See Sheehan, 863 N.E.2d at 128586 (noting that it is proof of a particular mode of
operation that relieves the plaintiff of the burden of proving notice); Mills, 2012 WL 6928121,
at *12 (applying the mode-of-operation approach to a slip-and-fall in a movie theatre because
a movie theatre is a unique venue).
155 See, e.g., Mills, 2012 WL 6928121, at *12 (allowing customers to transport food and
drinks to their movie seats); see also Marcione, 2010 WL 2697595, at *1, *3 (allowing customers
to transport food on trays to and from their table); FGA, Inc. v. Giglio, 278 P.3d 490, 497 (Nev.
2012).
156 See Sarkisian, 2012 Mass. App. Div. at 192 n.2 (allowing patrons to bring drinks onto a
dance floor); Mills, 2012 WL 6928121, at *12 (allowing patrons to purchase food and drinks
and bring them into a dark movie theatre); Vincequere v. L.J.B. & Assocs., No.
WOCV072504A, 2009 WL 3084254, at *12 (Mass. Super. Aug. 13, 2009) (placing strings of
Mardi Gras beads on tables in a nightclub).
157 See, e.g., Tavernese v. Shaws Supermarkets, Inc., No. 07-P-1829, 2008 WL 2726318, at *1
(Mass. App. Ct. July 15, 2008) (unpublished table decision).
158

Id.
Id.
160 Id.
161 See Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 1286 (Mass. 2007).
159

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mode-of-operation approach: that a plaintiff should not have to prove

notice when an owners chosen mode of operation makes it reasonably
foreseeable that a third party will create a dangerous condition.162 It would
ensure that the harm is in fact caused by the owners chosen mode of
operation, as opposed to a mode of operation inherent in all businesses.163
C. Applying the Mode-of-Operation Approach Outside of the SelfService Supermarket Context Is Not a Novel Concept
Generally, the mode-of-operation approach was created and adopted
as a result of grocery stores changing from clerk-assisted to self-service
over the past decades.164 Nevertheless, the approach has not been adopted
solely in the supermarket context. 165 In fact, some of the earliest
applications of the approach occurred outside of the self-service
supermarket context.166
In 1948, the Florida Supreme Court held that a plaintiff was not
required to prove actual or constructive notice of the condition that caused
the harm.167 In Wells v. Palm Beach Kennel Club, on one of the busiest days of
the year, a race-track operator sold bottled beverages to patrons without
providing trash receptacles for their disposal.168 Instead, patrons were
directed to place the bottles anywhere they could find room.169 The Court
reasoned that although in most cases the plaintiff is required to prove
notice, a different rule applied in this case because there was an issue as to
whether the defendants exercised a level of care commensurate with the
business conducted.170 In fact, the Florida Supreme Court in Owen relied
on the Wells decision to extend the mode-of-operation approach to the selfservice supermarket setting.171 Therefore, contrary to the notion that the
mode-of-operation approach should not extend beyond the self-service

162

See id. at 128687.

See Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 261 (Fla. 2002) ([T]he
basis for the negligent mode of operation theory is the claim that the specific mode of
operation selected by the premises owner or operator resulted in the creation of a dangerous or
unsafe condition.) (emphasis added).
163

164

See Sheehan, 863 N.E.2d at 128182.

See Markowitz, 826 So. 2d at 261.
166 See, e.g., Jasko v. F.W. Woolworth Co., 494 P.2d 839, 84041 (Colo. 1972); Wells v. Palm
Beach Kennel Club, 35 So. 2d 720, 721 (Fla. 1948).
165

167

See Wells, 35 So. 2d at 72021.

Id. at 720.
169 Id.
170 Id. at 72021.
171 See Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 32324 (Fla. 2001).
168

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supermarket context, the approach (in Florida at least) was originally

applied outside the self-service supermarket context.172
The Supreme Court of Colorado also excused the notice requirement in
a situation outside of the self-service supermarket context.173 In Jasko v. F.W.
Woolworth Co., the Court held that the plaintiff was not required to prove
notice where she slipped on a piece of pizza near a pizza counter. 174 The
owner of the pizza counter did not provide chairs or tables for customers to
eat their pizza, forcing customers to eat while standing in the aisle next to
the pizza counter.175 This practice caused pizza and other debris to
constantly fall on the floor.176 In holding that notice did not have to be
established, the court noted that [t]he basic notice requirement springs
from the thought that a dangerous condition, when it occurs, is somewhat
out of the ordinary.177 However, when the defendants mode of operation
creates a foreseeable risk that dangerous conditions will regularly occur,
notice does not have to be proven. 178
The above cases demonstrate that eliminating the notice requirement in
cases where the owner employs a mode of operation that makes the
creation of dangerous conditions by third parties reasonably foreseeable is
not a new concept.179 Such an approach represents the commonsense
notion that where an owners mode of operation makes the creation of
dangerous conditions reasonably foreseeable, the owner should not be
permitted to escape liability, even when the plaintiff cannot prove actual or
constructive knowledge.180 Rather, the issue in such cases should be
whether the owner exercised reasonable care in maintaining the premises
in a safe condition commensurate with these foreseeable risks.181

172 See id. Subsequent to the decision in Owens, the Florida Legislature overruled its
holding, passing legislation shifting the burden of proof back to the plaintiff and reinstating
the notice requirement. Gagnon & Peretti, supra note 88, at 23.
173

See Jasko v. F.W. Woolworth Co., 494 P.2d 839, 840 (Colo. 1972).
Id.
175 Id.
176 Id.
177 Id.
178 Id.
179 See Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 260 (Fla. 2002) (The
mode of operation theory is not a new principle of law and is not unique to a particular
business.). See Jasko, 494 P.2d at 84041; Wells v. Palm Beach Kennel Club, 35 So. 2d 720, 720
21 (Fla. 1948).
174

180 See Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 1286 (Mass. 2007); Iwai
v. State, 915 P.2d 1089, 1097 (Wash. 1996) (plurality opinion).
181

See Sheehan, 863 N.E.2d at 128687.

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V. Policy Concerns Support Extending the Mode-of-Operation

Approach Beyond the Self-Service Context
A. Extending the Mode-of-Operation Approach Would Not Subject
Premises Owners to Strict Liability
Given that one of the strongest critiques of the mode-of-operation
approach, as applied to self-service supermarkets, is that it subjects owners
to strict liability, it follows that this concern may be even stronger if the
approach is extended beyond the self-service context.182 Yet the reasons put
forth by the SJC in Sheehan as to why the mode-of-operation approach does
not subject owners to strict liability apply equally outside the self-service
context as within.183 As the SJC noted, the mode-of-operation approach
simply relieves the burden of proving actual or constructive notice where
the owner can reasonably foresee the creation of dangerous conditions. 184
The plaintiff still must prove that the defendant was negligenti.e. failed
to take adequate steps to prevent injury.185 If the jury finds that the
defendant took steps that an ordinarily prudent person would have taken,
liability will not attach.186
Because the plaintiff still must prove negligence, a premises owner will
not be automatically held liable for injuries sustained on the premises.187
While it is true that owners cannot completely prevent injuries to invitees,
owners can avoid liability by implementing procedures designed to
prevent, detect, and remedy dangerous conditions.188 Such procedures may
include keeping maintenance logs and instituting reporting requirements
as well as ensuring that employees follow these procedures. 189 As long as
preventive measures designed to avoid dangerous conditions are put in
place and carried out, an owner will have a strong defense against any
claims.190

182

See id. at 1285.

See id. at 128586.
184 See id. at 1285; Marcione v. Jan Co., Inc., No. 09-591ML, 2010 WL 2697595, at *3 (Dist. Ct.
R.I. June 15, 2010) ([T]here is nothing contained in Sheehan expressing the SJCs intent to limit
its holding to self-service grocery stores . . . .).
185 Sheehan, 863 N.E.2d at 1286.
186 See id.
187 See id. at 1286.
188 See Dwyer & Jarem, supra note 112, at 4647; see also Ravech, supra note 116, at 91 (noting
that under the mode-of-operation approach, the focus is on the steps taken by the defendant
to protect customers against foreseeable dangers).
183

189
190

See Dwyer & Jarem, supra note 112, at 50.

See id. at 4950.

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In this respect, the mode-of-operation approach is friendlier to business

owners than the burden shifting approach, which places the burden of
proof on the defendant to prove that it exercised reasonable care after the
plaintiff proves that he or she was injured on the defendants premises.191
After the Florida Supreme Court adopted both the mode-of-operation and
burden-shifting approaches in Owens, the Florida Retail Federation created
what it called the Banana Peel Coalition to lobby for legislation reversing
the Owens decision.192 Eventually, the coalition successfully reversed the
burden shifting aspect of Owens, but agreed to keep the mode-of-operation
approach.193 This experience suggests that the business community is
willing to accept the rationale behind the mode-of-operation approach and
is most concerned about being required to disprove their own negligence
every time someone is injured on their premises.194 In Massachusetts, the
legislature has not overruled the Sheehan decision, and the mode-ofoperation approach remains good law.195 Whether or not this approach
applies to the self-service supermarket setting or beyond, it does not
subject business owners to strict liability.196
B. It is Unjust to Require a Plaintiff to Prove Notice Where the
Defendants Mode of Operation Makes the Creation of Dangerous
Conditions by Third Parties Reasonably Foreseeable
In Sheehan, one reason the SJC gave for adopting the mode-of-operation
approach is that it is unfair to require the plaintiff to prove notice where
the plaintiffs injury results from a foreseeable risk of harm stemming
from an owners mode of operation.197 Information proving how long the
dangerous condition existed requires evidence that is more accessible to
the defendant and often involves speculation based on the appearance of
the matter on the floor.198
This rationale applies equally to cases outside of the self-service
supermarket context.199 Whether the dangerous condition is a grape

191

See Sheehan, 863 N.E.2d at 1284, 1286 (explaining the burden-shifting approach and
noting that the mode-of-operation approach does not subject owners to strict liability because
it still places the burden of proving negligence on the plaintiff).
192

See Zilieris, supra note 117, at 21920.

See id. at 22021.
194 See id. at 222.
195 See Sarkisian v. Concept Rests., Inc., 2012 Mass. App. Div. 191, 191 (2012) (holding that
Sheehan does not apply to the facts of the case, implicitly suggesting that it is still good law).
193

196

See Sheehan, 863 N.E.2d at 1286.

Id. at 1284.
198 Id.
197

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dropped on the floor by a customer in a self-service supermarket, liquid

spilled on a dance floor by a nightclub patron, or french fries dropped on
the floor by a customer at a fast-food restaurant, it will be incredibly
difficult for the plaintiff to prove how long the condition existed and that
the defendant had notice of the condition.200 Requiring the plaintiff to
prove notice essentially gives the defendant a free passeven though the
defendants mode of operation makes the existence of dangerous
conditions reasonably foreseeable, the defendant can plead ignorance and
avoid liability.201 Notably, in many of the recent Massachusetts cases
considering whether to extend the mode-of-operation approach,
submission of the case to the jury turned on whether the mode-ofoperation approach applied.202
C. Plaintiffs Still Must Prove That Their Injury Was the Result of the
Defendants Mode of Operation
Another critique of the mode-of-operation approach is that it allows
the jury to find liability without requiring a causal connection between the
defendants mode of operation and the plaintiffs injury.203 Yet, this concern
can be avoided by requiring the plaintiff prove that her injury actually
resulted from the defendants mode of operation, rather than simply
proving that she was injured on the premises and the defendant employed
a negligent mode of operation.204 In Sheehan, the SJC made clear that the

199 See Marcione v. Jan Co., No. 09-591ML, 2010 WL 2697595, at *3 (D. R.I. 2010); cf. Sheehan,
863 N.E.2d at 1284.
200 See Robert J. Carroll, Note, Supermarket Liability: Problems in Proving the Slip-and-Fall Case
in Florida, 18 U. FLA. L. REV. 440, 44344 (1965) (discussing the almost insurmountable burdens
that plaintiffs in slip-and-fall cases face, including the lack of disinterested witnesses and the
fact that the defendants employees are likely to have the most relevant information but are
reluctant to testify as to the existence of a dangerous condition).
201 See Iwai v. State, 915 P.2d 1089, 1097 (Wash. 1996) (plurality opinion); see, e.g., Sarkisian
v. Concept Rests., 2012 Mass. App. Div. 191, 19192 & n.2 (2012).
202 See, e.g., Sarkisian, 2012 Mass. App. Div. at 19192 (upholding dismissal because mode of
operation does not apply); Vincequere v. L.J.B. & Assoc., No. WOCV072504A, 2009 WL
3084254, at *12 (Mass. Super. Aug. 13, 2009) (holding that the mode-of-operation approach
applies and denying the defendants summary judgment motion despite the lack of evidence
of notice); Marcione, 2010 WL 2697595, at *3 (applying the mode-of-operation approach and
denying the defendants motion to dismiss).
203

See Winegar, supra note 104, at 888.

See Sheehan, 863 N.E.2d at 1286 ([I]f a plaintiff proves that an unsafe condition on an
owners premises exists that was reasonably foreseeable, resulting from an owners selfservice business or mode of operation, and the plaintiff slips as a result of the unsafe condition,
the plaintiff will satisfy the notice requirement.) (emphasis added).
204

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mode-of-operation approach only applies if the dangerous condition

results from the defendants chosen mode of operation and the plaintiff
slips as a result of this condition.205 For example, in Tavernese, a three-judge
panel of the Massachusetts Appeals Court refused to apply the mode-ofoperation approach in a case where the plaintiff slipped on a puddle of
water in the entrance of a supermarket. 206 Even though the defendant was
the same type of self-service supermarket as the defendant in Sheehan, the
plaintiffs injury was not the result of the defendants chosen mode of
operation (allowing customers to pick out their own groceries), as was the
case in Sheehan.207
If the mode-of-operation approach was extended outside of the selfservice supermarket context, the same causal relationship between the
negligent mode of operation and the injury sustained would have to be
demonstrated.208 As a result, there would be no greater risk of imposing
liability without a causal relationship if the mode-of-operation approach
were extended beyond the self-service context.209
VI. The Defendant Still May Be Able to Argue That the Dangerous
Condition Was Open and Obvious
In addition to implementing reasonable maintenance procedures, an
owner faced with defending a slip-and-fall claim may be able to argue that
no duty to protect the plaintiff existed because the condition which caused
the harm was open and obvious.210 A landowner has no duty to protect
lawful visitors from dangers obvious to persons of ordinary
intelligence.211 For example, some courts have held that there is no duty to
protect from the dangers of working on a roof,212 to warn of the danger of
foul balls at Fenway Park, 213 or to prevent a fourteen-foot board from being
able to extend through the ceiling of an elevator. 214 In all of these cases, the

205
206

See id. at 128687.

Tavernese v. Shaws Supermarkets, Inc., No. 07-P-1829, at *1 (Mass. App. Ct. July 15,

2008).
207

Id.
See Sheehan, 863 N.E.2d at 1286.
209 See id. at 128687.
210 See Ravech, supra note 116, at 91. The owner could not, however, argue that the plaintiff
assumed the risk of sustaining harm because assumption of the risk has been abolished as a
defense in Massachusetts. See MASS. GEN. LAWS ch. 231, 85 (2009).
208

211

Lyon v. Morphew, 678 N.E.2d 1306, 1310 (Mass. 1997).

Id.
213 Costa v. Bos. Red Sox Baseball Club, 809 N.E.2d 1090, 109293 (Mass. App. Ct. 2004).
214 Toubiana v. Priestly, 520 N.E.2d 1307, 1310 (Mass. 1988).
212

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risk of engaging in the plaintiffs conduct would have been obvious to a

person of average intelligence.215
Similarly, in cases to which the mode-of-operation approach would
apply, despite that the creation of dangerous conditions is reasonably
foreseeable, the danger may be so obvious that the defendant owes no duty
to protect the plaintiff.216 Take the situation in Sarkisian, for examplea
nightclub that permits patrons to bring drinks onto a dance floor. 217 This
mode of operation clearly makes the creation of dangerous conditions
liquid on the dance floorreasonably foreseeable.218 However, anyone
who has ever been to a crowded nightclub knows that liquid inevitably
ends up on the floor. As a result, just like foul balls at a baseball game, it
might be that conditions like wet floors at a nightclub are so obvious that
the owner owes no duty to protect patrons from the risks the condition
poses.219

CONCLUSION
The mode-of-operation approach recognizes the commonsense notion
that when business owners operate their businesses in such a way that
makes the creation of dangerous conditions reasonably foreseeable, it is
unfair to permit them to escape liability simply because the plaintiff cannot
prove notice of the specific condition which caused the harm. Failing to
recognize this concept both permits and encourages business owners to do
little or nothing to remedy the real risks that their businesses pose to
customers. The SJC recognized that adopting this approach makes sense in
the context of self-service supermarkets, for the practice of allowing
customers to pick out and sample groceries creates a foreseeable risk that
groceries will end up on the floor. Yet there are many other situations that
are not self-service in the traditional sense of the term, but pose an equally
foreseeable risk that third parties will create dangerous conditions. Such
situations may include, but are not limited to, a nightclub that permits
patrons to bring drinks onto a crowded dance floor; a fast-food restaurant
that permits customers to carry their food to and from their tables; a
racetrack that sells bottled drinks but does not provide trash receptacles; a

215 See Costa, 809 N.E.2d at 109293 (attending a baseball game); Toubiana, 520 N.E.2d at
1310 (sticking a board through the ceiling of an elevator); Lyon, 678 N.E.2d at 1310 (working
on a roof).
216

See Ravech, supra note 116, at 91.

Sarkisian v. Concept Rests., 2012 Mass. App. Div. 191, 191 (2012).
218 See id. at 192 n.2.
219 Cf. Costa, 809 N.E.2d at 109293.
217

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pizza counter that does not provide tables for its customers; or a movie
theatre that sells popcorn, drinks, and other snacks and allows patrons to
bring them into a dark theatre. In all of these circumstances, the defendant
places invitees in situations where they are likely to create dangerous
conditions that pose a real risk of harm to other invitees.
As the Colorado Supreme Court once stated: The basic notice
requirement springs from the thought that a dangerous condition, when it
occurs, is somewhat out of the ordinary . . . . However, when the operating
methods of a proprietor are such that dangerous conditions are continuous
or easily foreseeable, the logical basis for the notice requirement
dissolves.220 Because the rationale behind the mode-of-operation approach
logically extends to all situations in which the defendants specific mode of
operation makes the creation of dangerous conditions by third parties
reasonably foreseeable, the Massachusetts courts should not arbitrarily
restrict the approach to the self-service context.

220

Jasko v. F.W. Woolworth Co., 494 P.2d 839, 840 (Colo. 1972).