Articles Tagged with mode of operation

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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: Continue reading →

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mallOn April 24, 2011, Jackie and Ricky Cox, a husband and wife, went to a Wal-Mart to purchase some goods.  As Mrs. Cox made her way through the entrance, she fell and sustained serious personal injuries in connection with her fall.  An uninterested witness, an observer some twelve feet away, watched the fall take place.  He testified that for an hour before the fall he had observed the door threshold rising up approximately one half inch whenever a customer or cart crossed the threshold.  The witness testified that he observed this to occur due to the fact that the threshold plate was not secured tightly to the ground.  As a result, whenever a person stepped on one side of the metal plate, the other side would rise up.  He further observed, and subsequently testified, that when Mrs. Cox stepped on the plate with one foot, her other foot caught the plate causing her to fall.  A manager for Wal-Mart denied any sort of occurrence predicated on a rising plate.

Mrs. Cox filed a complaint in her home state of Mississippi and it was ultimately removed to Federal Court.  Mrs. Cox claimed that it was negligent of the store to allow a defect to exist on the property and that such a defect was unreasonably dangerous to persons such as herself.  The Defendant store argued that the purported defect in the threshold was not unreasonably dangerous.  A lower court agreed with the defense and held that a door threshold is among those dangers which are usual and which customers normally expect to encounter on the business premises, such as thresholds, curbs and steps.  As a result, the Plaintiff’s claim was dismissed.

The Plaintiff filed an appeal in the matter which was heard by the United States Court of Appeals in the Fifth Circuit.  The Court, on appeal, held that while there are certain dangers which are usual for a customer to expect, a defect is not one of those dangers.   A defect, the court detailed, is not a condition that one would normally encounter in the normal course of operations or mode of operation of a business.   The Court reversed the prior court’s ruling and allowed the Plaintiff to proceed to litigate her case on the merits. Continue reading →

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darkIn September of 2009, Michael Eason reserved a room at the Boston Marriot Burlington Hotel for an overnight stay.  After checking into the hotel at approximately 8:00 pm, he made his way to his rented room.  After opening the door to his hotel room, Mr. Eason admitted that the room was dark except for the faint glow emanating from the partially open door and a small gap in the curtain hanging over the windows.  As he stepped further into the hotel room, the light became even fainter as the door fully closed.  Mr. Eason took a few more steps in his room and unexpectedly encountered a coffee table that caused him to sustain a serious fall.  Mr. Eason alleges that it was negligence on behalf of the hotel that caused or substantially contributed to the injuries he sustained in connection with his fall.  A suit was commenced in Middlesex Superior Court but was ultimately moved to federal court for litigation.  The Defendant Hotel filed a motion for summary judgment in hopes of getting the case dismissed.

In order to succeed in a claim predicated on negligence a plaintiff must establish that the defendant owed the plaintiff a duty of care, that there was a breach in the purported standard of care, and due to the breach the plaintiff was caused to sustain damages for which he or she should be compensated.  In discussing the duty in this matter, the Judge reiterated that:

“While a landowner has a duty to lawful visitors of its property to maintain reasonably safe conditions and to warn of unreasonable dangers, landowners “are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from blatant hazards. . . Stated otherwise, where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it . . . .””

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wet floorIn a decision issued on May 12, 2014, the Massachusetts Appeals Court held that a man injured as a result of a slip and fall at Walgreens could not recover for the injuries he sustained.  The Plaintiff, Alejandro Curet, went to the Defendant Walgreens in Roxbury in order to pick up a medication.  While he was walking through the store with the aid of crutches, he went down the aisle containing hand lotions and creams.  While he was halfway through the aisle, he slipped and fell on a substance he alleged was lotion.  The Plaintiff brought suit against the Defendant claiming negligence in allowing a substance to be on the floor for an unreasonable amount of time.  The existence of a substance on the floor, according to the Plaintiff, constituted an unreasonable defect that caused or significantly contributed to his injuries.

While there was no evidence that there was cream or lotion on the floor at the time of the Plaintiff’s fall, the court noted that the Plaintiff could not point to any evidence that the Defendant organization knew the cream was there, had reason to know it would be there, or even a reasonable opportunity to discover its presence.  In response, the Plaintiff relied on the theory “mode of operation.”  Prior to 2007, when it came to the liability of a store owner for a slip and fall, liability would attach only where the owner had actual or constructive notice of the dangerous condition.  With the landmark decision of Sheehan v. Roche Bros. Supermarkets, Inc., the Supreme Judicial Court of Massachusetts held that a Plaintiff’s burden to prove notice of a dangerous condition could be satisfied if they are able to establish that the injury was attributable to a reasonably foreseeable dangerous condition that is related to the owner’s mode of operation. Continue reading →