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SJC-11786

         ANGELA SARKISIAN    vs.   CONCEPT RESTAURANTS, INC.1



            Worcester.      March 5, 2015. - June 23, 2015.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             & Hines, JJ.



Negligence, One owning or controlling real estate.      Notice.
     Practice, Civil, Summary judgment.



     Civil action commenced in the Worcester Division of the
District Court Department on July 6, 2010.

     The case was heard on a motion for summary judgment by
Steven E. Thomas, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Karen L. Stern for the plaintiff.
     Richard L. Neumeier for the defendant.
     Charlotte E. Glinka, Michael C. Najjar, & Thomas R. Murphy,
for Massachusetts Academy of Trial Attorneys, amicus curiae,
submitted a brief.
     John F. Brosnan, for Massachusetts Defense Lawyers
Association, amicus curiae, submitted a brief.



    1
        Doing business as the Liquor Store.
                                                                     2


    CORDY, J.   In this case we decide whether the "mode of

operation" approach to premises liability, adopted by this court

in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788

(2007), applies to slip-and-fall incidents occurring outside of

the context of self-service establishments.     Traditionally, a

plaintiff asserting premises liability has been required to show

that the owner of the premises had actual or constructive notice

of an unsafe condition that gave rise to an injury for which

compensation is sought.   See id. at 782-783.    Under the mode of

operation approach, however, the plaintiff satisfies the notice

requirement by showing that the injury was attributable to a

reasonably foreseeable unsafe condition related to the owner's

chosen mode of operation.   See id. at 786.

    The plaintiff, Angela Sarkisian, broke her leg after

slipping and falling on a wet dance floor at a nightclub owned

by the defendant, Concept Restaurants, Inc.     A judge in the

District Court granted summary judgment in favor of the

defendant based on the plaintiff's inability to show that the

defendant had actual or constructive notice of the unsafe

condition that caused her injury.   We conclude that, on the

facts presented by this case, the mode of operation approach
                                                                      3


applies and summary judgment granted to the defendant must be

reversed.2

     1.   Background.   We recite the material facts in the light

most favorable to the plaintiff, the party who opposed the

motion for summary judgment.    Augat, Inc. v. Liberty Mut. Ins.

Co., 410 Mass. 117, 120 (1991).     The defendant operated a

nightclub in Boston.    The nightclub was licensed to hold 574

patrons and had a wooden dance floor measuring approximately

fifty feet in length.   On the dance floor itself sat two bars --

one fifty-feet long and the other fifteen-feet long -- from

which patrons could purchase alcoholic and nonalcoholic

beverages served in plastic cups.    Patrons were permitted to

consume their beverages on the dance floor or, alternatively, in

a lounge area, which was accessible by a set of stairs at the

rear of the dance floor.

     On August 22, 2009, at around 9:45 P.M., the plaintiff

arrived at the nightclub with a group of friends.     A disc jockey

was playing music, and the dance floor was crowded with dancing

patrons, many of whom held drinks as they danced.     The

nightclub's dim lighting was accented by strobe lights that

flashed on the dancing patrons.     The nightclub was staffed with

eight security guards, three barbacks, and a manager, each of

     2
       We acknowledge the amicus briefs submitted by the
Massachusetts Academy of Trial Attorneys and the Massachusetts
Defense Lawyers Association.
                                                                     4


whom was generally responsible for ensuring that the dance floor

remained free of debris, notwithstanding the absence of any

written policies to that effect.

    The plaintiff and her friends danced for several hours

without noticing any spilled liquids on the dance floor.     At

around 1:30 A.M., the plaintiff traveled up the stairs to the

lounge area in search of a friend.   Unable to locate her friend,

she traveled back down the stairs less than one minute later.

On returning to the dance floor, she stepped onto a wet surface,

slipped, and fell.    As a result of the fall, the plaintiff

suffered two fractures to her right fibula and severe bruising.

    The plaintiff filed a complaint in the District Court,

seeking damages arising from the defendant's negligence.       The

defendant moved for summary judgment, arguing that the plaintiff

failed to show that the defendant had actual or constructive

notice of the dangerous condition and, thus, failed as a matter

of law to carry her burden under the "traditional" approach to

premises liability.    The judge allowed the motion.   The

plaintiff appealed on the ground that the "mode of operation"

approach to premises liability -- which alleviates the

plaintiff's burden of proving notice -- supplied the proper

legal standard.   Panels of the Appellate Division of the
                                                                          5


District Court and the Appeals Court affirmed.         We granted the

plaintiff's application for further appellate review.3

       2.    Discussion.    a.   Standard of review.   Summary judgment

is appropriate where there are no genuine issues of material

fact and the moving party is entitled to judgment as a matter of

law.       See Kourouvacilis v. General Motors Corp., 410 Mass. 706,

716 (1991); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404

(2002).      "A nonmoving party's failure to establish an essential

element of her claim 'renders all other facts immaterial' and

mandates summary judgment in favor of the moving party."          Roman

v. Trustees of Tufts College, 461 Mass. 707, 711 (2012), quoting

Kourouvacilis, supra at 711.

       b.    Scope of mode of operation approach.      As a general

rule, Massachusetts has adhered to the traditional approach to

premises liability.        That approach, as set forth in the

       3
       Notwithstanding the allowance of the defendant's motion
for summary judgment, a separate order of judgment in favor of
the defendant was never specifically entered on the District
Court docket. See Mass. R. Civ. P. 58 (a), as amended, 371
Mass. 908 (1977) ("Every judgment shall be set forth on a
separate document . . ."); Mass. R. A. P. 4 (a), as amended, 464
Mass. 1601 (2013) ("notice of appeal . . . shall be filed with
the clerk of the lower court within thirty days of the date of
the entry of the judgment . . ."). Nonetheless, the parties,
Appellate Division of the District Court, and Appeals Court
treated the allowance of the defendant's motion as the judgment.
Finding no prejudice to either of the parties in the premature
filing of the notice of appeal, we treat the appeal as if
judgment had entered. See Ramaseshu v. Board of Registration in
Med., 441 Mass. 1006, 1006 n.1 (2004); Swampscott Educ. Ass'n v.
Swampscott, 391 Mass. 864, 865–866 (1984).
                                                                      6


Restatement (Second) of Torts § 343 (1965), provides that "[a]

possessor of land is subject to liability for physical harm

caused to his invitees by a condition on the land if, but only

if, he (a) knows or by the exercise of reasonable care would

discover the condition, and should realize that it involves an

unreasonable risk of harm to such invitees, and (b) should

expect that they will not discover or realize the danger, or

will fail to protect themselves against it, and (c) fails to

exercise reasonable care to protect them against the danger."

Where the condition consists of spillage on the floor of a place

of business, the first element is satisfied if the operator of

that business "caused [the] substance, matter, or item to be on

the floor; the . . . operator had actual knowledge of its

presence; or the substance, matter, or item had been on the

floor so long that the . . . operator should have been aware of

the condition."    Sheehan, 448 Mass. at 782-783.

    In Sheehan, we acknowledged that there are circumstances in

which strict application of the traditional approach's notice

requirement will produce unjust results.     Id. at 788.   In that

case, for example, the plaintiff slipped and fell on a grape in

a grocery store.    The grapes were packaged in individual bags

that were easily opened by hand and, thus, were susceptible to

spillage by customers.    Id. at 781.   We noted that the evolution

of grocery stores from clerk-assisted to self-service operations
                                                                    7


created new risks to customers, "who generally may not be as

careful and vigilant as a store owner because customers are not

focused on the owner's concern of keeping items off the floor to

avoid potential foreseeable risks of harm to other patrons."

Id. at 784-785.

    Given that the notice inquiry in slip and fall cases is

generally a factor of how long the dangerous substance has been

on the floor, we concluded that it would be "'unjust to saddle

the plaintiff with the burden of isolating the precise failure'

that caused an injury, particularly where a plaintiff's injury

results from a foreseeable risk of harm stemming from an owner's

mode of operation."   Id. at 788, quoting Wollerman v. Grand

Union Stores, Inc., 47 N.J. 426, 430 (1966).   Accordingly, we

held that the notice requirement would be satisfied where "a

plaintiff proves that an unsafe condition on an owner's premises

exists that was reasonably foreseeable, resulting from an

owner's self-service business or mode of operation, and the

plaintiff slips as a result of the unsafe condition."    Sheehan,

448 Mass. at 791.

    Our adoption of the mode of operation approach in Sheehan

did not supplant the general requirement that the plaintiff

prove notice, nor did it modify in any way the remaining two

elements of premises liability set forth in the Restatement

(Second) of Torts § 343.   Sheehan, 448 Mass. at 792.   Rather, it
                                                                     8


refined the Restatement's notice requirement in a narrow subset

of premises liability cases.    The defendant argues that this

narrow subset of cases is strictly confined to slip-and-fall

incidents occurring in self-service establishments.    We

disagree.

    The principles set forth in the Restatement (Second) of

Torts are consistent with the application of the mode of

operation approach outside of the context of self-service

establishments.    The Restatement provides that a possessor of

land who holds it open to the public for business purposes has a

duty to exercise reasonable care to protect business visitors

from harms caused by third parties, e.g., other business

visitors.   Restatement (Second) of Torts § 344.   The comments

observe that although a warning will often supply the necessary

protection, there are "many situations in which the possessor

cannot reasonably assume that a warning will be sufficient."

Id. at § 344 comment d.   In such a situation, the landowner is

"required to exercise reasonable care to use such means of

protection as are available, or to provide such means in advance

because of the likelihood that third persons . . . may conduct

themselves in a manner which will endanger the safety of the

visitor."   Id.   These comments reflect fundamental principles of

tort liability that transcend the distinction between an errant

grape in a supermarket aisle and a spilled beverage on a dance
                                                                      9


floor.   See Sheehan, 448 Mass. at 788, quoting Restatement

(Second) of Torts § 343 comment e ("one entering a store,

theatre, office building, or hotel . . . is entitled to expect

that his host will make far greater preparations to secure the

safety of his patrons than a householder will make for his

social or even his business visitors").

     The defendant suggests that applying the mode of operation

approach outside of the self-service context will result in a

regime of strict liability.   We again disagree.    The law demands

reasonable care, not perfection.   See Restatement (Second) of

Torts §§ 343, 344.   See also Sheehan, 448 Mass. at 790

("Adoption of [the mode of operation] approach would not hold

owners strictly liable to all plaintiffs involved in slip-and-

fall incidents on their premises").   Irrespective of the

particular mode of operation involved, the plaintiff bears the

burden of establishing that the defendant failed to exercise

reasonable care in protecting its patrons from the unsafe

conditions facilitated by its mode of operation.4    See id. at

790-791.


     4
       In the case of a nightclub operating with bars on the
dance floor and permitting patrons to dance with their drinks,
such reasonable care might include the employment of sufficient
staff charged with monitoring and cleaning up spilled liquid on
the dance floor at sufficient intervals, or the use of beverage
containers on the dance floor that are less likely to spill
liquid when jostled. See Restatement (Second) of Torts § 344
comment f (1965).
                                                                  10


    Nonetheless, it is true that "nearly every business

enterprise produces some risk of customer interference," and, in

the absence of limiting principles, "[a] plaintiff could get to

the jury in most cases simply by presenting proof that a store's

customer could have conceivably produced the hazardous

condition."   Chiara v. Fry's Food Stores of Ariz., Inc., 152

Ariz. 398, 400-401 (1987).   In view of these concerns, the court

in Sheehan limited the mode of operation approach to situations

where a business should reasonably anticipate that its chosen

method of operation will regularly invite third-party

interference resulting in the creation of unsafe conditions, and

a visitor suffers an injury after encountering the condition so

created.   Sheehan, 448 Mass at 791.   The court in Sheehan did

not, however, limit this modern refinement of the notice

requirement to unsafe conditions arising from self-service

operations.   See generally id. at 785-786, 791, citing Jackson

v. K-Mart Corp., 251 Kan. 700, 701, 710-711 (1992) (spilled

juice purchased from in-store cafeteria).   See also Gump v. Wal-

Mart Stores, Inc., 93 Haw. 417, 419-421 (2000) (fallen french

fry purchased from in-store fast-food restaurant); McDonald v.

Safeway Stores, Inc., 109 Idaho 305, 307-308 (1985) (melted ice

cream dispensed by employees).   As was aptly observed in Konesky

v. Post Road Entertainment, 144 Conn. App. 128, 140-141 (2013),

a case on which the defendant relies, self-service is one
                                                                   11


"situation in which the proprietor's 'operating methods' enhance

the risk of recurring dangerous conditions brought about by

third party interference . . . but it logically is not the only

business method that can have such an effect."      Accordingly, we

now state explicitly what was implicit in Sheehan, namely, that

so long as the aforementioned parameters for applying the mode

of operation approach exist, there is no basis for limiting its

application to self-service establishments.5

     c.   Defendant's mode of operation.   Alternatively, the

defendant argues that even if the mode of operation approach

could be applied outside of the self-service context, it should

be further narrowed to exclude situations where a nightclub's

only feasible method of operation is to serve drinks to patrons

who are free to move about the premises.   In support of this

position, the defendant attempts to analogize this case to

Konesky, 144 Conn. App. at 141-142, a case involving a nightclub

that served cans and bottles of beer to patrons from large

plastic tubs filled with ice.   Id. at 130-131.     The plaintiff in

that case slipped and fell on a puddle located near one of the

"beer tubs" and sustained injuries.   Id. at 131.    She filed a


     5
       The defendant asserts that this so-called "extension" of
the mode of operation approach constitutes a new rule that may
only be applied prospectively. For the reasons stated in
Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 791 n.9
(2007), we reject this assertion.
                                                                   12


negligence action against the nightclub, arguing that the

nightclub's use of the beer tubs created an inherent risk of

recurring danger meriting the application of the mode of

operation approach.   Id. at 131-132.   The court disagreed,

concluding instead that the traditional approach was

appropriate.   Id. at 143-144.

    The analogy to Konesky fails because the slippery condition

in that case arose not from third-party interference, but from

the employees' failure to wipe off the dripping wet cans and

bottles before handing them to patrons.   Id. at 141 & n.11.    As

the court explained, the mode of operation approach is

superfluous where the defendant, rather than a third party,

affirmatively causes the unsafe condition.    Id.   See Sheehan,

448 Mass. at 782-783, 786 (under traditional approach, plaintiff

must prove either that owner caused unsafe condition or had

notice of it; under mode of operation approach, foreseeability

of condition satisfies notice requirement).    Although the

plaintiff in the Konesky case also argued that patrons

exacerbated the unsafe condition by carrying the dripping

beverages around the premises, the court cogently observed that

the same is true any time "a patron orders a bottle of beer at a

bar, a nightclub, or a wedding reception."    Konesky, 144 Conn.

App. at 142.   We agree with the Konesky court that an

establishment "does not create liability under the mode of
                                                                  13


operation doctrine simply by serving chilled beer."     Id. at 143.

Importantly, however, those are not the facts of this case.

    Here, the nightclub's mode of operation included the sale

of beverages in plastic cups from bars located on a dance floor.

The patrons were then permitted to dance while holding their

beverages.    It was reasonably foreseeable that such a mode of

operation would result in a recurring theme of cups being

jostled and liquid being jettisoned by patrons onto the dance

floor.   Where that liquid is spilled on a floor, crowded with

dancers, in a dimly lit setting with flashing strobe lights, and

the only route of travel to and from the lounge area is across

that dance floor, common sense tells us that the spill creates

an unsafe condition that a patron such as the plaintiff is ill-

suited to discern, except, perhaps, by the happenstance of a

slip and fall.

    Although the general risk of an unsafe condition occurring

might be equally obvious to both owner and patron, under these

circumstances, the owner is in a far better position to identify

and investigate the source of the condition once it has

occurred.    Sheehan, 448 Mass. at 789.   Moreover, it is not

reasonable for the owner to ignore a recurring risk of danger

arising from its chosen mode of operation where it would be

reasonable to expect that a patron who has entered the

establishment for the purpose of dancing would choose to
                                                                  14


encounter that risk rather than turn back.    See Restatement

(Second) of Torts § 344 & comment d.   Cf. Papadopoulos v. Target

Corp., 457 Mass. 368, 379 (2010) ("It is not reasonable for a

property owner to leave snow or ice on a walkway where it is

reasonable to expect that a hardy New England visitor would

choose to risk crossing the snow or ice rather than turn back or

attempt an equally or more perilous walk around").     Yet, in

cases such as this, the owner has scarce incentive to act

reasonably, because the injured patron will seldom be able to

discern the origin of the unsafe condition and, thus, satisfy

the notice requirement under the traditional approach to

premises liability.   See Sheehan, 448 Mass. at 788 ("traditional

approach requires plaintiffs to prove how long the substance

creating the hazardous condition has been on the floor, thereby

imposing an unfair burden on them to adduce evidence that is

more readily accessible to defendants").     It is apparent,

therefore, that the policies underlying the mode of operation

approach apply with the same force here as they did in Sheehan.

Fidelity to those policies demands that the mode of operation

approach be applied in this case.

    At oral argument, the defendant warned of the parade of

horribles that would follow such a result.     According to the

defendant, courts will begin applying the mode of operation

approach to any establishment in which patrons are permitted to
                                                                    15


carry their own drinks, whether they are traveling, for example,

from a bar to a table in a restaurant or from a concession stand

to their seats at a sporting event.   We dispel any such notion.

A plaintiff does not get to the jury simply by showing that an

establishment sells drinks to patrons who are then allowed to

travel about the premises.    See Konesky, 144 Conn. App. at 142.

A plaintiff may get to the jury, however, by showing that

patrons who wish to travel between the bar and their seats are

forced -- as a recurring feature of the mode of operation -- to

navigate in the dark through a crowd of dancing people holding

plastic cups filled with liquid over a wooden floor.   Spillage

is conceivable in either circumstance, but only in the latter is

the regularity of such spillage tied to the mode of operation in

a manner that justifies placing the business on notice of the

resulting unsafe condition.   See Chiara, 152 Ariz. at 400-401.

    Finally, the defendant argues that the mode of operation

approach is inappropriate on the facts of this particular case,

because there is no evidence of regular spillage or of a causal

nexus between such spillage and the plaintiff's injury.     These

arguments are undercut considerably by the nightclub manager's

deposition testimony that "spills on the dance floor are part of

the business."   Considering the evidence in the light most

favorable to the plaintiff, Augat, 410 Mass. at 120, the

reasonable inference is that a spilled beverage produced the wet
                                                                  16


surface on which the plaintiff slipped.     Cf. Leary v. Jordan

Marsh Co., 322 Mass. 309, 310 (1948) ("There was no evidence of

any wet spots upon the floor other than at the site of the

accident, except near the entrance.     The absence of any evidence

of wet spots between any of the entrances and the spots in

question negatives any contention that these spots came from

water tracked in the store and indeed leaves the rain as the

source of these spots a matter of conjecture and surmise").

Whether the defendant exercised reasonable care to protect

patrons from such spillage is a question for the jury.     Sheehan,

448 Mass. at 792.

    3.   Conclusion.   For the foregoing reasons, we conclude

that summary judgment was improperly granted and that the

defendant had notice of the inherent risks associated with its

chosen mode of operating its dance floor.     We reverse the order

granting summary judgment in favor of the defendant and remand

the case to the District Court for further proceedings

consistent with this opinion.

                                      So ordered.
