Supreme Judicial Court of Massachusetts, Middlesex
LINDA S. BOWERS
P. WILE'S, INC 
Heard: January 7, 2016.
action commenced in the Superior Court Department on
February 24, 2012.
case was heard by Paul D. Wilson, J. on a motion for
summary judgment, and a motion to vacate judgment was also
heard by him.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
T. Black for the defendant.
McCormack for the plaintiff.
following submitted briefs for amici curiae: William P.
Mekrut for Massachusetts Defense Lawyers' Association.
A. Kelly for Property Casualty Insurers Association of
Annette Gonthier Kiely, Michael C. Najjar, Tomas R. Murphy,
& Elizabeth N. Mulvey for Massachusetts Academy of Trial
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ. 
case we are called upon to determine whether the "mode
of operation" approach to premises liability, see
Sarkisian v. Concept Restaurants, Inc., 471 Mass.
679, 683 (2015) (Sarkisian), and Sheehan v.
Roche Bros. Supermkts., Inc., 448 Mass. 780, 788 (2007)
(Sheehan), is applicable with respect to the
operation of a garden store. The plaintiff, Linda Bowers,
suffered a displaced fracture of her right hip after she
slipped and fell on a walkway leading into a Cape Cod garden
store owned by the defendant, P. Wile's, Inc., doing
business as Agway of Cape Cod (Agway). Agway maintains what
the parties refer to as a "gravel area" near the
concrete walkway leading into the store, where landscaping
items are displayed for sale. Customers may enter the gravel
area, which consists of small stones less than one inch in
diameter,  and shop for products displayed there
without assistance from any Agway employee.
she fell on Agway's premises, Bowers filed a complaint in
the Superior Court asserting that she tripped on a stone that
had migrated from the gravel area to the walkway, and that
Agway knew that the movement of the stones from the gravel
area created a risk of tripping on the walkway, but failed to
take reasonable steps to mitigate that risk. Agway moved for
summary judgment, arguing that, under the traditional theory
of premises liability, where a foreign object is temporarily
on a defendant's premises, Bowers would be required to
prove Agway's actual or constructive notice of the
presence of the stone on the walkway, which she concedes she
is unable to do, because she does not know how the stone came
to be on the walkway, nor how long it had been there when she
tripped and fell. See Sheehan, 448 Mass. at 782-783,
citing Restatement (Second) of Torts § 343 (1965) .
argued that, notwithstanding an inability to prevail under a
traditional theory of premises liability, she could prevail
by applying a mode of operation analysis. Bowers contends
that, under this approach, she could establish that Agway had
notice that the stone was present because Agway uses a
self-service gravel area as part of its daily operation, and
was aware that customers walking in the area to pick up items
for purchase might dislodge stones onto the
walkway. See Sheehan, supra.
that the mode of operation approach is not applicable in
these circumstances, a Superior Court judge granted
Agway's motion for summary judgment. In a divided
opinion, the Appeals Court reversed. See Bowers v. P.
Wile's, Inc., 87 Mass.App.Ct. 362, 363 (2015). We
allowed Agway's motion for further appellate review, and
conclude that the mode of operation analysis is applicable in
the circumstances here.
recite the undisputed facts from the summary judgment record,
viewed in the light most favorable to the nonmoving party.
See LeBlanc v. Logan Hilton Joint Venture, 463 Mass.
316, 318 (2012); Mammone v. President & Fellows of
Harvard College, 446 Mass. 657, 659-660 (2006). On a
December afternoon in 2011, Bowers went to one of Agway's
garden stores on Cape Cod to shop. She approached the store
on a walkway that runs between the parking lot and the store.
The six-foot wide gravel area, made up of "river stones,
" is adjacent to this walkway. Agway displays
landscaping merchandise for sale in this area, and customers
may help themselves to products there. While walking on the
walkway adjacent to the gravel area, Bowers tripped on one of
the stones that apparently had migrated onto the walkway; she
did not see the stone before she fell. As a result of the
fall, Bowers suffered a displaced fracture of her right hip
that required two surgical repairs. Immediately after Bowers
fell, an Agway employee, who had come outside to assist her,
kicked several stones from the walkway into the gravel area.
had installed the gravel area as part of its installation of
a porch addition to the front of the garden store. Although
Agway considered planting grass in this area, it instead
chose to use gravel. The gravel area had been in place for
fifteen years without any previous complaints of a customer
having fallen due to the presence of the stones. Nonetheless,
prior to Bowers' fall, Agway was aware that stones could
be dislodged by people walking in the gravel area, and could
end up on the walkway, creating a potential tripping
hazard. As a result, Agway had developed a
practice of having employees inspect the walkway to make sure
that it was free of stones. The practice was informal, and
there was no set schedule under which employees were to check
the walkway. Rather, employees would check the walkway
throughout the day, as they went outside to assist customers,
or for other reasons during the course of their work.
review a decision on a motion for summary judgment de novo.
See LeBlanc v. Logan Hilton Joint Venture, 463 Mass.
at 318. Summary judgment for the defendant is not appropriate
if "anywhere in the evidence, from whatever source
derived, any combination of circumstances could be found from
which a reasonable inference could be drawn in favor of the
plaintiff [as the nonmoving party]" (citation omitted).
Mullins v. Pine Manor College, 389 Mass. 47, 56
(1983) . Ordinarily, questions of negligence are for the
trier of fact; only when no rational view of the ...