NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-313                                                Appeals Court

                LINDA S. BOWERS     vs.   P. WILE'S, INC.1


                             No. 14-P-313.

         Middlesex.       December 10, 2014. - May 15, 2015.

             Present:   Kantrowitz, Green, & Sullivan, JJ.


Negligence, Retailer.     Notice.    Practice, Civil, Summary
     judgment.



     Civil action commenced in the Superior Court Department on
February 24, 2012.

     The case was heard by Paul D. Wilson, J., on a motion for
summary judgment, and a motion to vacate judgment was heard by
him.


    David McCormack for the plaintiff.
    Joseph T. Black for the defendant.


    GREEN, J.     In Sheehan v. Roche Bros. Supermarkets, Inc.,

448 Mass. 780, 788 (2007) (Sheehan), the Supreme Judicial Court

adopted the so-called "mode of operation" approach to premises

liability.    Under that approach, a plaintiff injured as the


    1
        Doing business as Agway of Cape Cod.
                                                                     2


result of a dangerous condition on an owner's property is

relieved of the need to prove that the owner had actual or

constructive notice of the condition if he instead establishes

that the dangerous condition was "related to the owner's self-

service mode of operation."   Id. at 786.   In the present case, a

judge of the Superior Court allowed the defendant's motion for

summary judgment, based on his view that the mode of operation

approach applies only where the dangerous condition results from

breakage or spillage of items offered for sale.2   We discern no

such limitation in the mode of operation approach described by

the Supreme Judicial Court in Sheehan, supra, or in the

rationale supporting it.   We also conclude that the summary

judgment record does not foreclose the prospect that the

plaintiff could succeed, at trial, in proving that the defendant

failed to use reasonable measures to prevent injuries that could

result from the foreseeable dangerous condition.    See

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714

(1991).   We accordingly reverse the judgment and the order

denying the plaintiff's motion to vacate the judgment, and

remand the matter to the Superior Court for further proceedings.

     Background.   We review the entry of summary judgment de

novo, construing all facts in favor of the nonmoving party.


     2
       In so doing, the motion judge appears to have followed a
line of like rulings by other judges of the Superior Court.
                                                                        3


Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

We summarize the undisputed facts, construed in that manner, as

they appear in the summary judgment record.

       On the afternoon of December 28, 2011, the plaintiff rode

with her father to the defendant's store on Cape Cod.3      The

weather was clear, with no precipitation, and the ground was

dry.       After getting out of the car, the plaintiff walked on the

"inner side of the sidewalk" toward the store.       Before reaching

the store, however, she fell after stepping on a small "river

stone" about three-quarters of an inch in size.4      The stone was

on the sidewalk after having been moved (by some unknown means)

from an adjacent gravel area maintained by the store.       The

plaintiff did not see the stone, or any other stones, on the

sidewalk before falling.       As a result of her fall, the plaintiff

suffered a "displaced fracture of her right hip that required

two surgical repairs."

       At the time of her accident, the plaintiff was looking at a

birdbath on display in the gravel area.       She was wearing shoes

called "clogs," and she had had no difficulty with the shoes on

       3
       As the motion judge observed, the summary judgment record
describes the store's location inconsistently, in both Dennis
and Orleans. The disparity is immaterial.
       4
       As the motion judge noted, the     parties have referred to
the object in question variously as a     river stone, rock, or
pebble. We adopt his choice to refer      to the object generally as
a river stone and agree with him that     the precise label applied
to the object is immaterial.
                                                                   4


that day or in the past.   When she fell, she remained on the

sidewalk and did not fall into the gravel area or strike any of

the merchandise on display.

    The plaintiff had visited the store on multiple occasions

since the late 1980's or early 1990's.    She had walked on the

same sidewalk before and had seen similar river stones on it,

without encountering difficulty.

    The concrete sidewalk on which the plaintiff fell was about

six feet wide and ran between the parking lot and the store, in

front of, and parallel to, the store front.   The gravel area,

also about six feet wide, was between the sidewalk and the store

front.

    Between the gravel area and the front wall of the store

building was a porch area.    The porch floor surface was on the

same plane as the sidewalk and gravel area and was about six

feet wide.   The store displays merchandise both within the porch

area and on and around the gravel area, and customers are

allowed to help themselves to products from those areas.

    Jessica Wile, a store manager, testified that the store

sells various outdoor products during the winter months,

including pottery, birdbaths, and shovels.    The store's cash

registers are located inside and near the store's front doors.

The front doors are the only entrance for customers in the
                                                                   5


winter months; an alternate entrance through the greenhouse,

also at the front of the store, is closed during the winter.

     The store constructed the gravel area about fifteen years

before the accident.5   Prior to the plaintiff's fall, no other

complaints regarding river stones on the sidewalk were brought

to the store’s attention, and no accidents from river stones on

the sidewalk had occurred.   However, it was a common occurrence

for customer foot traffic through the gravel area, or

manipulation of merchandise displayed there, to cause river

stones to move from the gravel area onto the sidewalk.   When

assisting customers in carrying merchandise to their cars, or

when retrieving shopping carts from the parking lot, store

employees would look to see if river stones were present on the

sidewalk, and would kick any stones back into the gravel area.

However, there was no formal schedule for inspections, and no

policy requiring that inspections occur on a particular basis or

by particular employees.

     The store maintained a weekly cleaning list that included

spaces for dates and initials from Wile or an assistant manager

after an employee completed a task.   The cleaning list included

tasks such as wiping counters, cleaning doors, and cleaning


     5
       Wile stated that the store constructed the gravel area of
river stones because of a municipal building department
requirement that the area be permeable for water drainage
purposes.
                                                                   6


floors.   There was no similar list for outside inspections,

including the gravel area.

     Five employees, including Wile, were working on the day of

the accident.6   Also among those working on the day of the

accident was an employee named Jason Bowman.   In his deposition

he testified that, on an "average day," he went outside the

store about every fifteen minutes, while helping customers, and

inspected the sidewalk for the presence of river stones on those

occasions.   According to Wile, Bowman was "at the register with

[Wile]" at the time of the accident.   Bowman likewise testified

that he was working the cash register that day, and that

business was "steady."   The record furnishes no guidance

whether, or (if at all) how often, Bowman left the register to

inspect the sidewalk for river stones on the day of the

accident.7

     After the plaintiff fell, her father went into the store

and asked Bowman to provide assistance.   Bowman went outside,

where he found the plaintiff on the ground and initially

attempted to help her get up.   After realizing that the


     6
       During the winter months, when the store was less busy, it
usually had seven to ten employees working daily, according to
Wile. The store consists of a showroom of about 4,000 square
feet, and a warehouse, closed to the public, of about 7,000
square feet.
     7
       The deposition transcript of Bowman included in the record
presents only excerpts of Bowman's testimony.
                                                                     7


plaintiff was injured, and recalling that store policy was to

inform a supervisor of an accident, Bowman went back inside the

store to retrieve Wile.8

     Wile went outside and spoke with the plaintiff, who stated

that she could not stand and needed help.    Wile went back inside

the store and returned with a stool for the plaintiff.     Wile

then called 911 from her cellular telephone.

     According to Wile, when they were waiting for the ambulance

to arrive, the plaintiff stated that she had stepped on a rock,

started to trip, crossed her leg in an attempt to catch herself,

but then fell on her hip.    Wile then returned to the store to

retrieve a notepad on which to write down the plaintiff's name

and information.    When she returned, Wile obtained the

plaintiff's contact information and gave the plaintiff her card.

An ambulance then came to transport the plaintiff to the

hospital.    Wile "took the [river stone] and taped it onto a

piece of paper and put it in [her] desk drawer."    She then "went

out and noted any pebbles [on the sidewalk] and kicked them back

onto the [gravel] area."

     Discussion.    As we observed in the introduction, in

Sheehan, 448 Mass. at 782-791, the Supreme Judicial Court

adopted the mode of operation approach to premises liability, in



     8
         Once Bowman retrieved Wile, he remained inside the store.
                                                                    8


a departure from the "traditional approach."9   The court

introduced the doctrine by observing that it modifies how the

notice requirement of premises liability is met:

     "Under the mode of operation approach, the plaintiff's
     burden to prove notice is not eliminated. Instead,
     the plaintiff satisfies the notice requirement if he
     establishes 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."

     Id. at 786.

     To explain its decision to adopt the mode of operation

approach, the court observed that modern merchandising

techniques often call for customers to engage in "self-service"

activities (in circumstances where store employees previously

might instead have assisted them).   See id. at 784.   The use of

self-service operations in turn carries with it the foreseeable

risk that customer carelessness could give rise to spillage and

breakage that could cause dangerous conditions in the store

premises -- in contrast to store employees who generally would

be expected to be more careful and, in any event, act under the

supervisory oversight of their employer.   See id. at 784-785.

However, the court was explicit that its rationale was based on

     9
       Under the traditional approach, a landowner is liable for
injuries caused by dangerous conditions on his property if the
owner knows or should know of an unreasonable risk of harm,
visitors will not discover the danger or protect themselves, and
the landowner fails to exercise reasonable care to protect them.
See Sheehan, supra at 782, quoting from Restatement (Second) of
Torts § 343 (1965).
                                                                   9


the foreseeable likelihood that hazards could result from the

owner's self-service mode of operation, and that such

"conditions may include, but are not limited to, spilled foreign

substances or fallen matter."   Id. at 786 n.6.

     In allowing the defendant's motion for summary judgment,

the motion judge suggested that applying the mode of operation

approach to the circumstances of the plaintiff's injury would

constitute an extension of the doctrine beyond the "spillage and

breakage" paradigm involved in Sheehan,10 and our dissenting

colleague presses a similar suggestion.   To the contrary,

however, in our view the attempt to limit application of the

mode of operation approach to spillage and breakage of products

offered for sale (and, thereby, to limit Sheehan to its facts)

is at odds both with the court's explanation of its holding, see

ibid., and with the fundamental tort principles on which the

mode of operation approach is based.11


     10
       In so doing, the motion judge cited a number of other
cases decided in the Superior Court that similarly limited the
mode of operation approach to dangerous conditions caused by
spillage or breakage of products offered for sale. That
articulation of the limitation -- that the risk derive not
simply from spillage or breakage but that the spillage or
breakage be of a product offered for sale -- imposes an even
further restriction of the doctrine beyond the limitation
expressly disclaimed by the court in its opinion.
     11
       For another recent discussion of basic tort principles in
the evaluation of a judicially formulated rule of convenience,
see Papadopoulos v. Target Corp., 457 Mass. 368, 370-378 (2010),
citing Sheehan, 448 Mass. at 791-792, in support of abrogating
                                                                   10


    To return to first principles, "[a] landowner must act as a

reasonable man in maintaining his property in a reasonably safe

condition in view of all the circumstances, including the

likelihood of injury to others, the seriousness of the injury,

and the burden of avoiding the risk."     Mounsey v. Ellard, 363

Mass. 693, 708 (1973), quoting from Smith v. Arbaugh's

Restaurant, Inc. 469 F.2d 97, 100 (D.C. Cir. 1972).    The

foreseeability of potential danger is an essential limiting

characteristic, as is the opportunity of the landowner to take

reasonable steps to mitigate the risk to visitors.    See Mounsey

v. Ellard, supra at 708-709.     See also Sheehan, 448 Mass. at

783-784.   Accordingly, under the traditional approach, a store

owner was held liable for injuries occurring on his premises

only if he had "actual or constructive notice of the existence

of the dangerous condition, [and] sufficient . . . time . . . to

remedy the condition."   Id. at 784.

    The rationale for adoption of the "modern" mode of

operation approach was simple:    in circumstances where store

owners invite customers to use "self-service" to manipulate

merchandise displays, there is a foreseeable risk that

customers' handling of merchandise or displays will cause

disruption of the store's arranged display, to the end that



the rule that a property owner cannot be liable for a natural
accumulation of snow or ice.
                                                                   11


hazardous conditions will result.   See id. at 784-786.    Put

another way, "the owner of such a self-service establishment has

actual notice that his mode of operation creates certain risks

of harm to his customers.   Since a self-service operation

involves the reasonable probability that these risks will occur,

these risks are foreseeable."   Id. at 786, quoting from Pimentel

v. Roundup Co., 100 Wash.2d 39, 43 (1983).12

     We acknowledge that Sheehan, supra at 781, itself, involved

an injury caused by an item (a grape) that apparently fell from

a self-service display to the supermarket floor before a

customer slipped on it.   However, under the rationale supporting

the mode of operation approach, it should not matter whether the

item that migrates from the self-service display to the floor

(thereby causing a slipping hazard) is a grape or a quantity of

shaved ice from the bed keeping the grapes cool.   The

distinction drawn by the motion judge between items offered for

sale and other hazards foreseeably occurring as a result of the

store's use of a self-service mode of operation accordingly

should make no difference in the applicability of the mode of

operation approach.   Moreover, as we have observed, the Supreme

     12
       In adopting the mode of operation approach, the Supreme
Judicial Court also observed that several jurisdictions, while
declining to adopt the mode of operation approach, nonetheless
take account of "recurrent" risks in assessing whether a
property owner should have known that a condition resulting from
its regular operations posed a risk of injury to customers. See
Sheehan, supra at 789.
                                                                  12


Judicial Court explicitly cautioned that its adoption of the

mode of operation was not limited to "spilled foreign substances

or fallen matter."   Sheehan, 448 Mass. at 786 n.6.

    Returning to the facts of the instant case, on the summary

judgment record it is undisputed that the gravel area, the

source of the stone causing the plaintiff's injury, was a self-

service area used for the display and sale of store merchandise,

including large items, the manipulation of which foreseeably

could (and often did) cause stones to move onto the sidewalk,

creating a risk of tripping or falling.   In our view, it is

accordingly an appropriate circumstance for application of the

mode of operation approach.

    Of course, application of the mode of operation approach

does not alone establish liability of the landowner.   It remains

for the plaintiff to prove that "an ordinarily prudent person in

the defendant's position would have taken steps, not taken by

the defendant, to prevent the accident that occurred."   Id. at

790-791, quoting from Toubiana v. Priestly, 402 Mass. 84, 88-89

(1988).   On this question, the summary judgment record is

inconclusive.   Though the motion judge treated as established

fact that every store employee was instructed to inspect the

sidewalk for river stones, and that one employee (who was

working on the day of the accident) conducted such an inspection

every fifteen minutes, the record is less conclusive than that.
                                                                  13


As we have observed, the store had no formal policy in place

concerning inspection of the outdoor sidewalks.    Moreover,

Bowman (the store employee who described making such inspections

every fifteen minutes) described his practice in general terms,

on an average day.   He offered no testimony that he made any

such inspections on the day of the accident, and we note that he

was working the cash register that day, with a "steady" flow of

customers past his register.   We also note that (according to

Wile) the store was staffed with only five employees, compared

to a typical staffing complement on slow winter days of seven to

ten employees.   See note 6, supra.   In short, on the summary

judgment record there remains a genuine issue of material fact

as to whether the store took adequate steps to address the risk

posed by the inadvertent transfer of river stones from the

gravel area onto the adjacent sidewalk.    Though the burden to

prove that the store failed to take adequate protective measures

remains with the plaintiff, the defendant has not shown, on the

present summary judgment record, that the plaintiff has no

reasonable expectation of meeting her burden at trial.     See

Kourouvacilis v. General Motors Corp., 410 Mass. at 714.

    Conclusion.   The judgment dismissing the plaintiff's

complaint and the order denying the plaintiff's motion to vacate

the judgment are reversed.   The case is remanded to the Superior

Court for further proceedings consistent with this opinion.
              14


So ordered.
    KANTROWITZ, J. (dissenting).    When granting summary

judgment, the motion judge noted that the mode of operation

approach adopted by the Supreme Judicial Court in Sheehan v.

Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788 (2007)

(Sheehan), had thus far been applied routinely to "spillage and

breakage" cases, or in cases where a plaintiff was injured by a

product or an item that was available for customers to pick up

and carry around the store.   The river stone in this case was

not a product for sale, or an item intended for customers to

pick up and carry, but rather part of the exterior design of the

defendant's store.   The majority's application of the mode of

operation approach to these facts is an unnecessary expansion of

that approach, needlessly broadening the field.   Perhaps of

equal significance, regardless of the approach used, summary

judgment was appropriate.

    In Sheehan, the Supreme Judicial Court cited several cases

that illustrated the context of, and support for, the court's

decision.   Here, the majority decision stands in stark contrast

to the cases cited by the Supreme Judicial Court.   Notably, the

cases cited in Sheehan supporting the mode of operation approach

involved business establishments that invited customers to pick

up and carry products in or around the store, with a plaintiff

injured by a product that was capable of being handled and

conceivably purchased.   See Tom v. S.S. Kresge Co., 130 Ariz.
                                                                   2


30, 31 (1981) (customer slipped on clear liquid substance in

self-service store that sold primarily dry goods but also soft

drinks capable of being carried around store); Chiara v. Fry's

Food Stores of Ariz., Inc., 152 Ariz. 398, 399 (1987) (customer

slipped on creme rinse at self-service store); Safeway Stores,

Inc. v. Smith, 658 P.2d 255, 256 (Colo. 1983) (customer in self-

service grocery store slipped on substance that appeared to be

hand lotion); Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467,

469 (2002) (customer hit by boxed aluminum tables that fell from

shelf in self-service retail store); Gump v. Walmart Stores,

Inc., 93 Haw. 428, 433 (Ct. App. 1999) (customer slipped on

french fry in self-service store that contained a restaurant),

aff'd in part and rev'd in part on other grounds, 93 Haw. 417

(2000); Jackson v. K-Mart Corp., 251 Kan. 700, 701 (1992)

(customer in clothing section of self-service department store,

which sold avocado juice at store cafeteria, slipped and fell on

green liquid that was apparently avocado juice); Wollerman v.

Grand Union Stores, Inc., 47 N.J. 426, 428 (1966) (customer in

vegetable section of self-service supermarket slipped and fell

on string bean); Canfield v. Albertsons, Inc., 841 P.2d 1224,

1225 (Utah Ct. App. 1992) (customer in produce department of

self-service store slipped on lettuce leaf); Pimentel v. Roundup

Co., 100 Wash.2d 39, 41 (1983) (customer at self-service
                                                                    3


department store was hit on foot by can of paint that fell from

shelf).

       Each of these cases involved a customer or visitor injured

by a product for sale, or an item intended to be picked up and

carried, within a self-service store.    Here, in contrast to the

cases cited in Sheehan and Sheehan itself, the object that

caused the plaintiff's injury was not an item for sale that a

customer could conceivably purchase from the store or an item

that the store invited customers to pick up and carry, within

its "self-service mode of operation."    Sheehan, 448 Mass. at

786.

       The approach adopted in Sheehan applies if a plaintiff's

injury is attributable to a "reasonably foreseeable dangerous

condition on the owner's premises that is related to the owner's

self-service mode of operation."    Ibid. (emphasis supplied).

Until now, no published opinion from this court or the Supreme

Judicial Court (or apparently the Superior Court) has held that

this approach applies to hazards on a store's premises resulting

from anything other than an item that the store owner

conceivably intended for customers to pick up and carry around

(hence the phrase "self-service" as it appears in the Sheehan

opinion).

       Under the majority's expansive application of this

approach, however, almost any potential hazard can be "related
                                                                     4


to" a defendant's self-service mode of operation.     Ibid.

Removal of the limits on the application of the mode of

operation approach, which lower courts have followed until this

point, will potentially expose self-service businesses in

Massachusetts to premises liability not envisioned by the

Sheehan court, because everything within such businesses is

conceivably related to their mode of operation under the

majority's new application of the approach.

    A further problem with the majority's holding is that even

assuming that the mode of operation approach should apply,

summary judgment for the defendant was still appropriate, as the

motion judge explained.     The mode of operation approach only

provides plaintiffs with a different (and less burdensome)

method for proving the notice element.     See id. at 790.    A

plaintiff must still demonstrate that the defendant acted

unreasonably.   See ibid.    Here, the plaintiff is unable to make

such a showing.

    The motion judge properly found that the plaintiff had no

reasonable expectation of proving at trial that the defendant

breached a duty of care, even assuming that the mode of

operation approach applied.     See Flesner v. Technical

Communications Corp., 410 Mass. 805, 809 (1991).    The plaintiff

produced no affirmative evidence that a reasonable jury could

use to infer that the store was negligent.     See Godbout v.
                                                                     5


Cousens, 396 Mass. 254, 261 (1985) (nonmoving party may not rest

upon mere allegations or denials, but must respond with specific

facts); Pederson v. Time, Inc., 404 Mass. 14, 17 (1989) (once

party moving for summary judgment establishes absence of triable

issue, burden shifts to nonmoving party to offer affirmative

evidence).    See also Mass.R.Civ.P. 56(c), as amended, 436 Mass.

1404 (2002).    Mere assertions that the defendant's evidence

should not be believed is not affirmative evidence sufficient to

withstand summary judgment.    See Godbout v. Cousens, supra at

261-262.    The bare fact that an accident occurred is not proof

of negligence.    See, e.g., Tamagno v. Conley, 322 Mass. 218, 219

(1948) ("The mere fact that the accident happened is of course

no evidence of the defendant's negligence").

    At their depositions, the defendant's employees testified

on the store's practice of inspecting the sidewalk and pushing

back any river stones that escaped from the gravel area.     In

contrast, the plaintiff merely argues that a jury could

disbelieve these accounts of the employees' inspection efforts

and find in her favor.    Arguing that a fact finder could

theoretically disbelieve a witness at trial is not affirmative

evidence.    See Boston v. Santosuosso, 307 Mass. 302, 349 (1940)
                                                                    6


("[A]s has been pointed out many times, disbelief of evidence is

not the equivalent of affirmative evidence to the contrary").1

     The plaintiff has provided no affirmative evidence, for

example, that store employees failed to inspect the sidewalk on

the day of her accident, or that the employees who were supposed

to inspect the sidewalk as part of their duties neglected to

take proper care and unreasonably allowed a hazardous condition

to exist on the sidewalk.   She provided no evidence that

demonstrated that the river stone on which she fell had been on

the sidewalk for an unreasonable amount of time.   The mere fact

that she fell on a river stone is not evidence of the store's

alleged negligence.   See Tamagno v. Conley, supra.

     In contrast, the defendant's evidence showed that

reasonable efforts were made to inspect the sidewalk, including

a general practice of inspecting the outside area for safety.

The defendant also showed that employee Bowman, who was working

on the day of the accident, usually checked the sidewalk for

river stones every fifteen minutes.   If there were evidence that



     1
       Indeed, juries are routinely instructed: "If you do not
believe a witness's testimony that something happened, of course
your disbelief is not evidence that it did not happen. When you
disbelieve a witness, it just means that you have to look
elsewhere for credible evidence about that issue."
Massachusetts Superior Court Civil Practice Jury Instructions
§ 1.2.8 (Mass. Cont. Legal Ed. 3d ed. 2014). See Criminal Model
Jury Instructions for Use in the District Court, Instruction
2.260 (Mass. Cont. Legal Ed. 2009) (same).
                                                                   7


these employees neglected their duties that day, the plaintiff

needed to place such evidence before the motion judge.

    As the plaintiff produced no such evidence, the judge

properly found that there were no genuine issues for trial

because the plaintiff could not prove that the store acted

improperly.   See Flesner v. Technical Communications Corp., 410

Mass. at 809.   Viewing the evidence in the light most favorable

to the plaintiff, the defendant was entitled to judgment as a

matter of law, even assuming that the mode of operation approach

applied.   See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass.

117, 120 (1991).

    Because the majority's decision expands the application of

the mode of operation approach, and because summary judgment was

properly granted in any event, I respectfully dissent.
