Article Preview: “Extending The Mode of Operation Approach Beyond the Self-Service Context” by William Brekka

The seeming simplicity of the facts of most slip-and-fall cases belie the increasingly complex and amoebic set of new rules which govern them. The modern personal injury practitioner must keep abreast of these changes if she hopes to adequately represent an injured customer or defend the owner of the premises where the injury took place. As the methods in which customers and business owners engage in commerce have evolved, the law has, albeit slowly, attempted to evolve with these methods to preserve the rights of business owners and customers in the event of an injury.

Bill Brekka examines one such evolution in slip-and-fall cases in Massachusetts in Extending The Mode of Operation Approach Beyond the Self-Service Supermarket Context, which will be featured in the New England Law Review, Volume 48, Book 4. The article examines Sheehan v. Roche Brothers Supermarkets, Inc., where the SJC recognized the need for a new rule appreciating “self-service” developments in many supermarkets, which gave customers more freedom to handle the merchandise. This “mode of operation” approach eliminates the standard slip-and-fall rule which requires the injured plaintiff to prove that the premises owner had notice of the risk that caused the injury if the defendant’s mode of operation creates a foreseeable risk that a dangerous condition will occur. After Sheehan, the lower courts have reached different conclusions about whether or not this rule, one that has effectively attached liability to premises owners who would otherwise escape liability by demonstrating a lack of actual notice, applies only in the self-service context.

Mr. Brekka contends that the rule should be applied outside of the self-service context. In view of the inconsistent application of the rule outside of the self-service context by Massachusetts courts, federal courts applying state law, and several other state courts, Mr. Brekka asserts that the mode of operation approach to premises liability should be used in and out of the self-service context—namely, in any situation where the business owner’s mode of operation creates reasonably foreseeable dangerous conditions. Practical and equitable concerns inform Mr. Brekka’s view as well: he argues that it is “unfair to saddle the plaintiff with the burden of proving notice and ‘isolating the precise failure’” in situations where a business owner operates his commercial business in a manner which makes injury readily foreseeable. He supplies a ready example of a bar which allows its patrons to bring drinks onto a dance floor. Is this business self-service? No. Does it still create a foreseeable risk that a customer could be injured as a result of this mode of operation? Undoubtedly, argues Brekka.

Mr. Brekka’s thorough consideration of the merits of adopting the mode of operation approach outside of the self-service context includes weighing the policy arguments on either side of the movement to apply the doctrine more widely. He addresses a common critique of the doctrine—that it constitutes unfair strict liability—and argues its extension still requires proof the defendant was somehow negligent in creating the dangerous mode of operation. Brekka also argues that a premises owner may still evade liability if she can demonstrate that the dangerous condition was “open and obvious” to persons of ordinary intelligence, in which case she would not be responsible for the injury caused by such a condition.

Be sure to read Mr. Brekka’s defense of what he calls a “commonsense” doctrine and his advocacy for its widened application in the Massachusetts courts.

Contributing Editor: Kevin Buono

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