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Bowers v. P. Wile's, Inc.

Supreme Judicial Court of Massachusetts, Middlesex

July 28, 2016

P. WILE'S, INC [1]

          Heard: January 7, 2016.

         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 also heard by him.

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

          Joseph T. Black for the defendant.

          David McCormack for the plaintiff.

          The following submitted briefs for amici curiae: William P. Mekrut for Massachusetts Defense Lawyers' Association.

          Carol A. Kelly for Property Casualty Insurers Association of America.

          Annette Gonthier Kiely, Michael C. Najjar, Tomas R. Murphy, & Elizabeth N. Mulvey for Massachusetts Academy of Trial Attorneys.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. [2]

          DUFFLY, J.

         In this 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, [3] and shop for products displayed there without assistance from any Agway employee.

         After 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) .

         Bowers 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.[4] See Sheehan, supra.

         Concluding 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.[5]

         1. Background.

         We 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.[6] 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.

         Agway 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.[7] 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.

         2. Discussion.

         We 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 ...

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