The First Circuit Court of Appeals recently ruled the “mode-of-operation” notice theory under Massachusetts law did not apply to a negligence claim arising out of a patron’s slip and fall at TD Garden in Boston.
The Case
In Raheb v. Delaware North Companies, Inc. – Boston, d/b/a TD Garden, while attending a Boston Bruins game at TD Garden, the plaintiff visited a concession stand where he purchased a beer in a plastic cup without a lid. While walking back to his seat through the crowded concourse, he slipped and fell on the white tile floor, landing on his kneecap and rupturing his left quadricep tendon. As a result, he had to undergo surgery, incurred significant medical bills, and missed time from work.
The plaintiff testified the concourse was busy and crowded and that after his fall he noticed a “fairly clear liquid” on the floor where he slipped. TD Garden’s video footage showed approximately five seconds before the fall, another patron who was carrying a plastic cup of beer in each hand, spilled the liquid onto the floor. At the time of the incident, no one who appeared to be employed by TD Garden was in the area.
Past Precedent
Under the traditional approach to premises liability in Massachusetts, a plaintiff must show that the defendant’s property owner had actual knowledge of a spill or that the spill had been on the floor for so long that the defendant reasonably should have been aware of the condition. As an exception, the Massachusetts State Supreme Court (SJC), has recognized a “mode-of-operation” notice theory, which holds a plaintiff may satisfy the notice requirement by establishing that an injury was “attributable to a reasonably foreseeable dangerous condition on the owner’s premises that is related to the owner’s self-service mode of operation.” Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1276, 1283 (2007).
The SJC has applied this “mode-of-operation” notice theory to a slip and fall, which occurred when a patron spilled a beverage from a lidless cup onto the hardwood floor in a dark, crowded nightclub where patrons were dancing under flashing strobe lights. Sarkisian v. Concept Rests., Inc., 32 N.E.3d 854, 855-56 (2015).
The Results
Noting the absence of any evidence that TD Garden was dimly lit or employed flashing strobe lighting, or that its patrons regularly jostled each other causing spills, the First Circuit Court of Appeals held that the “mode-of-operation” notice theory was inapplicable under the circumstances and affirmed the grant of summary judgment in favor of TD Garden.
This article originally appeared on Freeman Mathis & Gary, LLP. https://www.fmglaw.com/
About the Author:
David A. Slocum is a partner at Freeman Mathis & Gary, LLP. david.slocum@fmglaw.com