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Buyer Beware: Premises Liability Cases Where Customers Serve Themselves

In Massachusetts, businesses that allow customers to serve themselves may face liability for hazards created by customers moving the merchandise. In a recent case, the appeals court decided whether the mode of operation doctrine applies when customer manipulation of merchandise creates a hazard that is not related to the merchandise itself. 

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In Bowers v. P. Wiles, Inc., the plaintiff stepped on a small "river stone" on the sidewalk outside the defendant's store and fell. The stone had been in a gravel area where the store displayed merchandise, but it came to be on the sidewalk by unknown means. The plaintiff had not seen the stone, or any other stones, on the sidewalk that day before her fall, but she had seen similar stones on the sidewalk on previous visits to the store.

The store manager said the store created the gravel area about 15 years earlier to meet a municipal requirement regarding water drainage. The store had not received other complaints about stones on the sidewalk, nor had there been previous accidents related to the stones. Nevertheless, stones commonly ended up on the sidewalk because of people walking through the gravel or moving the merchandise displayed in the gravel. The store had no policy requiring regular inspections, but employees who were in the parking lot performing other duties looked for stones on the sidewalk and moved them back to the gravel area.

One of the employees working on the day of the fall testified that his duties took him outside approximately every 15 minutes on an average day and that he inspected the sidewalk for stones when he was out there. The store manager and the employee both testified that the employee was working the register that day.

Under the traditional approach to premises liability, landowners are responsible for injuries only if they had actual or constructive notice of the hazard and sufficient time to correct it. The Massachusetts Supreme Judicial Court has instead adopted the mode of operation approach to premises liability. Under this approach, a plaintiff in a premises liability case can establish the notice requirement by showing the injury resulted from a dangerous condition that was reasonably foreseeable and related to a "self-service mode of operation." When store owners invite customers to use self-service, it is foreseeable that the customers may disrupt the display and cause a dangerous condition. The concept is that the owner has notice that the very mode of operation creates risks and that those risks are foreseeable.

The trial court granted summary judgment in favor of the defendant, indicating that application of the mode of operation under these facts would extend the doctrine beyond "spillage and breakage" of merchandise, the situations in which it has generally been applied. The trial court had drawn a distinction between merchandise and other hazards, but the appeals court found no reason to distinguish between items for sale and other aspects of the display causing the unsafe condition.

The appeals court found that it was undisputed in the record that the gravel area was a self-service area where the store displayed merchandise and that the movement of that merchandise by customers could foreseeably cause the stones to move on the sidewalk and create a hazard. The appeals court found that the mode of operation approach applies in this case, even though the stones were not for sale.

The appeals court reversed the judgment dismissing the complaint and the order denying the motion to vacate the judgment, and it remanded the case back to the Superior Court. The appeals court pointed out that the case is not over and that the plaintiff still must prove that the store had not taken steps that an ordinarily prudent person would have taken to prevent the accident. While the employee had testified to his behavior on an average day, he had not provided specific information about how many inspections he had performed on the day of the accident. Furthermore, there was no formal policy requiring inspections. The appeals court found that there was a genuine issue of material fact as to whether the store had taken appropriate steps to prevent the risk.

Massachusetts does not follow the traditional rule in premises liability cases. If you have been injured in a store or other self-service style business, you need an experienced Massachusetts premises liability attorney to help you get the compensation you deserve. Call the Law Offices of Richard Mucci at (781) 729-3999.

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