In many situations, there may be more than one type of legal theory that allows you to win your case and obtain a recovery of damages. For one woman who broke her hip trying to enter a Cape Cod garden store, she was able to advance her premises liability lawsuit even though she didn’t have proof that the store owner had actual notice or constructive notice of the tripping hazard that caused her to fall. The customer succeeded because she persuaded the courts that she should be allowed to go forward based upon something known as a “mode of operation” analysis. This alternate means of pursuing a premises liability case is just one example of how it can pay to have skillful and knowledgeable Massachusetts premises liability counsel on your side.
The injured woman, Linda, was a customer who was attempting to enter the store when she fell. The fall took place along a walkway that was surrounded by a gravel area that the store used to display products for sale. One of the gravel rocks had found its way onto the walkway and caused Linda to trip and fall, which resulted in her suffering a displaced fracture of her right hip.
The customer filed a lawsuit against the owner of the store for her injuries. The store moved for summary judgment, which would have ended Linda’s case before she even got to trial. The store’s argument was that the law of premises liability required an injured person to show the existence of actual or constructive notice, and Linda had proof of neither, so she had no case. “Actual or constructive notice” means that the owner or party responsible for a certain property either actually knew or reasonably should have known about a hazardous condition (such as gravel rocks in a walkway).
Linda had a potential problem. She acknowledged that she was unable to show that the store owner had either actual or constructive notice of the gravel problem. Specifically, she had no proof regarding how the rock arrived on the walkway or how long it had been there.
Linda argued that, despite her lack of proof regarding how the rock ended up on the walkway (and how long it had been there), she should be able to hold the store liable under something called the “mode of operation” argument. Her theory was that the store owner had to know (or should know) about the potential tripping hazard of gravel rocks in the walkway because it used the gravel display area as part of the store’s daily operations, and it knew that customers using the area to take items might inadvertently move gravel rocks onto the walkway.
This latter theory of liability was a viable argument, according to the Appeals Court and the Supreme Judicial Court. The rule of “mode of operation” liability is that the way a business operates might necessarily create dangerous conditions and that the business owner has a legal obligation “to take all reasonable precautions necessary to protect against those foreseeable hazards.” In other words, if Linda was able to prove that the garden store owner didn’t have in place “all reasonable precautions necessary” to keep the gravel rocks in the gravel area and out of the walkway, she potentially had a case for damages.
If you’ve been hurt in a slip-and-fall or trip-and-fall accident on another person’s property, you may have a claim for recovery based upon premises liability. You should talk to counsel right away. Experienced Plymouth County slip-and-fall lawyer Michael S. Mehrmann has zealously represented injured people from across Plymouth County, including in Kingston, Plymouth, Marshfield, Hanson, Carver, Pembroke, and Duxbury, for many years. To find out more about how we can assist you, call (781) 585-3911 or contact us online.
More Blog Posts:
Successfully Pursuing an Out-of-State Entity as Part of Your Massachusetts Premises Liability Case, Plymouth County Injury Lawyer Blog, Dec. 29, 2017
Enforcing the Settlement You Achieved Through Mediation in Your Massachusetts Auto Accident Case, Plymouth County Injury Lawyer Blog, Dec. 22, 2017