Slip and Fall Injury Recovery Made More Difficult by Massachusetts Court

In a case called Sarkisian v. Concept Restaurants, the Appellate Division of the District Court declined to extend the “mode of operation” law to a nightclub in Boston. In Sarkisian, the plaintiff was at a bachelorette party all evening at the Liquor Store nightclub.
This is a favorite club in Boston; we know from various depositions over the years where folks have testified that they were at the Liquor Store, celebrating with their friends. In any event, when the plaintiff in this case slipped on the dance floor on a “half a cup” of liquid, it resulted in a badly broken leg. Should the night club be liable? What is the law for slip and fall in Massachusetts?

The controlling case in this area of law is Sheehan v. Roche Brothers Supermarkets, Inc., which was decided in 2007. In that case, the plaintiff fell on a grape in a supermarket and was seriously injured. In that case the court reviewed the law up until that time: to prove negligence, the plaintiff must show either: that the defendant caused the substance causing the fall to be on the floor, that the defendant knew of the substance on the floor, or, that the substance had been there so long that the defendant should have known it was on the floor. However, in Sheehan, the Court adopted the “mode of operation approach” which allows the plaintiff to show that the “nature of the defendant’s business gives rise to a substantial risk of injury to customers from slip and fall accidents.” Under this modern approach, the plaintiff need only show that the defendant “failed to take all reasonable precautions necessary” in preventing slip and fall accidents.
Thus, the plaintiff has the burden of proof to show that the defendant “failed to take reasonable measures commensurate with the risks involved.” This new approach in the law enables an injured plaintiff to simply prove that it was “reasonably foreseeable” that the substance would be on the floor from the mode of operation of that business.

Unfortunately for Ms. Sarkisian, the Court here decided that the Sheehan case is not controlling. The reason, according to the Court, is that t is not a “self-service establishment.” That is, in a supermarket, folks serve themselves, drop food that is slippery and thus, the “mode of operation” which allows for this should also be responsible for clearing up dropped fruit. A nightclub, however, where patrons must go up to a bartender to purchase a drink is different. The distinction may be blurred, however, because the Court pointed out that serving drinks to folks who are allowed to bring them to a dance floor “all but guarantees spillage and presents a real risk of injury.”

In this case, the plaintiff may appeal to the Appeals Court. In our opinion, a dance floor is not a place to bring drinks. It invites spillage. Water, or sugary drinks, on an already slippery floor in a dimly lit room, with folks moving about, invites slips and falls. Absent a sign that either says no drinks or drinks allowed, be forewarned, night clubs of this nature invite injuries.