Mode of Operation Approach Applied to Slip and Fall on Dance Floor in Nightclub

When a visitor or patron is injured due to a slip and fall on another’s property in Massachusetts, the law imposes a burden on the injured party to establish that the owner or occupier of the land: (1) knew or should have known of the dangerous condition, and should have known that the condition involves an unreasonable risk of harm to those on the property; and, (2) should have expected that the visitor/patron would not discover or realize that danger, or will fail to protect themselves against it; and, (3) failed to protect their visitors/patrons against the danger. When the dangerous condition involves something spilled on the floor, the injured party can satisfy the first requirement if the operator of the business: (1) caused the substance to be on the floor; (2) the operator had actual knowledge of its presence; or, (3) the substance had been on the floor so long that the operator should have been aware of the condition.

In Sarkisian v. Concept Restaurants, Inc., decided by the Massachusetts Supreme Judicial Court on June 23, 2015, the Court applied the mode of operations approach in a case involving a slip and fall on a dance floor in a nightclub. The mode of operations approach allows an injured person to prove that a business had notice of the dangerous condition 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.” In Sarkisian, the nightclub argued that the mode of operation approach applied only to self-serve establishments like supermarkets. Given the nightclub’s placement of two bars on the dance floor and its service of drinks in plastic cups that they knew would be spilled by dancers on the wooden dance floor in the dimly lit club, the Court disagreed while reiterating that it would be unjust to saddle the injured person with the burden of isolating the precise failure that caused an injury, particularly where the injury results from a foreseeable risk of harm stemming from an owner’s mode of operation.

In addition to flatly stating there is no reason for restricting the application of the mode of operation approach to self-service establishments, Sarkisian is important because the SJC noted that: (1) while the risk of the unsafe condition occurring might be equally obvious to both owner and patron, the owner is in a far better position to identify and investigate the source of the condition once it had occurred; (2) it is unreasonable for an owner to ignore a recurring risk of danger arising from its chosen mode of operations; and, (3) allowing use of the mode of operations approach would provide incentive to owners to act reasonably in addressing dangerous conditions.

According to the National Floor Safety Institute, slips and falls account for more than 1 million emergency room visits per year. Centers for Disease Control [CDC] statistics note that among older adults, falls are a leading cause of both fatal and nonfatal injuries. CDC numbers for 2013 reflect 2.5 million nonfatal falls among older adults who were treated in emergency departments with more than 734,000 of these patients hospitalized. In 2013, direct medical costs of falls, adjusted for inflation, were $34 billion. Under such circumstances, common sense judicial rulings allowing the injured to hold careless property owners accountable so they can’t shift their, or their insurers, responsibility for harm they caused to the injured person’s medical insurer, which often is Medicare or Medicaid, are warranted and in the public interest.

If you have been injured in a slip and fall incident, the attorneys at Heinlein, Beeler, Mingace & Heineman, P.C., may be able to assist you with the serious injuries that often occur. Please call HBMHLaw for a free initial consultation, or visit us at www.HBMHLaw.com.