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Court Won’t Apply Mode of Operation to Injured Nightclub Patron

clubIn or around August of 2009, Angela Sarkisian was in attendance at a night club named ‘The Liquor Store’ in Boston, Massachusetts.  Ms. Sarkisian was at the club for a bachelorette party she was attending.  The club consisted of two bars as well as a wooden dance floor and lounge area adjacent to the dance area.  Patrons were freely able to bring drinks from the bar to the dance floor as well as the lounge area.  In order to get to the lounge area a patron had to ascend two stairs.  Ms. Sarkisian spent the night with her friends and frequented the dance portion of the club as well as the lounge area.  At one point, she was taking the steps down to the dance floor and slipped on a puddle of liquid.  As a result she broke her leg in two places and required serious medical attention for her personal injuries.

Ms. Sarkisian brought suit against the club, predicated on negligence, and claimed that the club was negligent in allowing a defect (the puddle) to exist on the floor.  As a result of such a defect, she claimed she suffered serious and severe personal injuries.  The club countered that the Defendant did not breach any duty of care to the Plaintiff and that she failed to prove that club knew, or should have known, about the spill on the floor.  The club contended that without such notice, no breach of duty of care could be established.  As a result, the Defendant filed a motion for summary judgment alleging that there were no material facts in dispute that rose to a triable level- and as such- the Defendant should be entitled to judgment as a matter of law.  The court ruled in favor of the Defendant and Ms. Sarkisian appealed.

On appeal the Plaintiff argued that the mode of operation approach should apply because, based on the night club’s businesses, it is foreseeable that drinks can be spilled on a floor and create a dangerous condition.  In discussing the Plaintiff’s argument of ‘mode of operation’ the court wrote:

 “In certain slip and fall cases, the plaintiff is relieved of the requirement to prove that “the owner or the owner’s employees had actual or constructive notice of the dangerous condition or to prove the exact failure that caused the accident.” In such a case the plaintiff is now required to prove that “the owner could reasonably foresee or anticipate that a foreseeable risk stemming from the owner’s mode of operation could occur.” Negligence still must be inferred from the defendant’s unreasonable disregard of its mode of operation and inadequate steps taken to protect the plaintiff from injury.”

The court distinguished this matter from other applications of the mode of operation theory.  The court held that the mode of operation approach to slip and fall cases does not apply in situations where the Defendant is not a self-service establishment (like a grocery store).  As a result, the Plaintiff could not rely on this theory and instead had to prove that the puddle was present prior to her injury and that the Defendant either caused the substance to be on the floor, had knowledge that it was on the floor, or had a reasonable opportunity to discover and remedy the problem.  The case was affirmed and in resolved in favor of the Defendant.

To read more on the above referenced case, please see Sarkisian v. Concept Restaurants, Inc., on the Massachusetts Court page.  Go to opinions and  search by Party Name.  If you believe you have a slip and fall case, our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.