DANCE HALL DAYS! SJC ADOPTS MODE OF OPERATION APPROACH TO PREMISES LIABILITY

“Take your baby by the hand

And make her do a high hand stand

And take your baby by the heel

And do the next thing that you feel

We were so in phase in our dance hall days”

                                                                                      ― Wang Chung

 In Sarkisian v. Concept Restaurants, Inc., the SJC decided 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. 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.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. The dance floor became wet because customers were allowed to dance with drinks in their hands, which not surprisingly spilled onto the dance floor during some of the faster dance songs. A judge in the District Court granted summary judgment in favor of the nightclub based on the plaintiff’s inability to show that the nightclub had actual or constructive notice of the unsafe condition that caused her injury. In other words, the lower court held that since the nightclub owner did not know the floor was wet, it was not liable. The SJC concluded that, on the facts presented by this case, the mode of operation approach applies and summary judgment granted to the nightclub must be reversed. The court basically said allowing customers to have beverages on the dance floor is a reasonably foreseeable unsafe condition.How does this apply to condominium or homeowner associations? There are numerous instances where a condominium may have a reasonably foreseeable unsafe mode of operation on its premises. Does it allow drinking of alcohol in the condominium pool? Does it allow glass in the condominium pool? Does it allow private drones to fly on or over the property? Associations and boards should periodically review their rules and policies to ensure that their “mode of operation” does not create the reasonably foreseeable unsafe conditions. In addition, associations and board should also consult with insurance professionals to ensure proper coverages are in place in the event of an accident. Unfortunately, the Supreme Court has declared that the “dance hall days” are officially over.For a copy of the Decision [click here].