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SJC-11786

ANGELA SARKISIAN vs. CONCEPT RESTAURANTS, INC.1

Worcester. March 5, 2015. - June 23, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, 

& Hines, JJ.

Negligence, One owning or controlling real estate. Notice.

Practice, Civil, Summary judgment.

Civil action commenced in the Worcester Division of the 

District Court Department on July 6, 2010. 

The case was heard on a motion for summary judgment by 

Steven E. Thomas, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review. 

Karen L. Stern for the plaintiff.

Richard L. Neumeier for the defendant.

Charlotte E. Glinka, Michael C. Najjar, & Thomas R. Murphy,

for Massachusetts Academy of Trial Attorneys, amicus curiae, 

submitted a brief.

John F. Brosnan, for Massachusetts Defense Lawyers 

Association, amicus curiae, submitted a brief.

 

1 Doing business as the Liquor Store.
2

CORDY, J. In this case we decide whether the "mode of 

operation" approach to premises liability, adopted by this court 

in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788

(2007), applies to slip-and-fall incidents occurring outside of 

the context of self-service establishments. Traditionally, a 

plaintiff asserting premises liability has been required to show 

that the owner of the premises had actual or constructive notice 

of an unsafe condition that gave rise to an injury for which 

compensation is sought. See id. at 782-783. Under the mode of 

operation approach, however, the plaintiff satisfies the notice 

requirement by showing that the injury was attributable to a 

reasonably foreseeable unsafe condition related to the owner's 

chosen mode of operation. See id. at 786.

The plaintiff, Angela Sarkisian, broke her leg after 

slipping and falling on a wet dance floor at a nightclub owned 

by the defendant, Concept Restaurants, Inc. A judge in the 

District Court granted summary judgment in favor of the 

defendant based on the plaintiff's inability to show that the 

defendant had actual or constructive notice of the unsafe 

condition that caused her injury. We conclude that, on the 

facts presented by this case, the mode of operation approach
3

applies and summary judgment granted to the defendant must be 

reversed.

2

1. Background. We recite the material facts in the light 

most favorable to the plaintiff, the party who opposed the 

motion for summary judgment. Augat, Inc. v. Liberty Mut. Ins. 

Co., 410 Mass. 117, 120 (1991). The defendant operated a 

nightclub in Boston. The nightclub was licensed to hold 574 

patrons and had a wooden dance floor measuring approximately 

fifty feet in length. On the dance floor itself sat two bars --

one fifty-feet long and the other fifteen-feet long -- from 

which patrons could purchase alcoholic and nonalcoholic 

beverages served in plastic cups. Patrons were permitted to 

consume their beverages on the dance floor or, alternatively, in 

a lounge area, which was accessible by a set of stairs at the

rear of the dance floor. 

On August 22, 2009, at around 9:45 P.M., the plaintiff

arrived at the nightclub with a group of friends. A disc jockey 

was playing music, and the dance floor was crowded with dancing 

patrons, many of whom held drinks as they danced. The 

nightclub's dim lighting was accented by strobe lights that 

flashed on the dancing patrons. The nightclub was staffed with 

eight security guards, three barbacks, and a manager, each of 

 

2 We acknowledge the amicus briefs submitted by the 

Massachusetts Academy of Trial Attorneys and the Massachusetts 

Defense Lawyers Association. 
4

whom was generally responsible for ensuring that the dance floor 

remained free of debris, notwithstanding the absence of any 

written policies to that effect. 

The plaintiff and her friends danced for several hours 

without noticing any spilled liquids on the dance floor. At 

around 1:30 A.M., the plaintiff traveled up the stairs to the 

lounge area in search of a friend. Unable to locate her friend, 

she traveled back down the stairs less than one minute later.

On returning to the dance floor, she stepped onto a wet surface, 

slipped, and fell. As a result of the fall, the plaintiff

suffered two fractures to her right fibula and severe bruising.

The plaintiff filed a complaint in the District Court, 

seeking damages arising from the defendant's negligence. The 

defendant moved for summary judgment, arguing that the plaintiff 

failed to show that the defendant had actual or constructive 

notice of the dangerous condition and, thus, failed as a matter 

of law to carry her burden under the "traditional" approach to

premises liability. The judge allowed the motion. The 

plaintiff appealed on the ground that the "mode of operation"

approach to premises liability -- which alleviates the 

plaintiff's burden of proving notice -- supplied the proper 

legal standard. Panels of the Appellate Division of the 
5

District Court and the Appeals Court affirmed. We granted the 

plaintiff's application for further appellate review.

3

2. Discussion. a. Standard of review. Summary judgment 

is appropriate where there are no genuine issues of material 

fact and the moving party is entitled to judgment as a matter of 

law. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 

716 (1991); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 

(2002). "A nonmoving party's failure to establish an essential 

element of her claim 'renders all other facts immaterial' and 

mandates summary judgment in favor of the moving party." Roman

v. Trustees of Tufts College, 461 Mass. 707, 711 (2012), quoting 

Kourouvacilis, supra at 711.

b. Scope of mode of operation approach. As a general 

rule, Massachusetts has adhered to the traditional approach to 

premises liability. That approach, as set forth in the 

 

3 Notwithstanding the allowance of the defendant's motion

for summary judgment, a separate order of judgment in favor of 

the defendant was never specifically entered on the District 

Court docket. See Mass. R. Civ. P. 58 (a), as amended, 371 

Mass. 908 (1977) ("Every judgment shall be set forth on a 

separate document . . ."); Mass. R. A. P. 4 (a), as amended, 464

Mass. 1601 (2013) ("notice of appeal . . . shall be filed with 

the clerk of the lower court within thirty days of the date of 

the entry of the judgment . . ."). Nonetheless, the parties, 

Appellate Division of the District Court, and Appeals Court 

treated the allowance of the defendant's motion as the judgment. 

Finding no prejudice to either of the parties in the premature 

filing of the notice of appeal, we treat the appeal as if 

judgment had entered. See Ramaseshu v. Board of Registration in 

Med., 441 Mass. 1006, 1006 n.1 (2004); Swampscott Educ. Ass'n v. 

Swampscott, 391 Mass. 864, 865–866 (1984).
6

Restatement (Second) of Torts § 343 (1965), provides that "[a]

possessor of land is subject to liability for physical harm 

caused to his invitees by a condition on the land if, but only 

if, he (a) knows or by the exercise of reasonable care would 

discover the condition, and should realize that it involves an 

unreasonable risk of harm to such invitees, and (b) should 

expect that they will not discover or realize the danger, or 

will fail to protect themselves against it, and (c) fails to 

exercise reasonable care to protect them against the danger." 

Where the condition consists of spillage on the floor of a place 

of business, the first element is satisfied if the operator of 

that business "caused [the] substance, matter, or item to be on 

the floor; the . . . operator had actual knowledge of its 

presence; or the substance, matter, or item had been on the 

floor so long that the . . . operator should have been aware of 

the condition." Sheehan, 448 Mass. at 782-783.

In Sheehan, we acknowledged that there are circumstances in 

which strict application of the traditional approach's notice

requirement will produce unjust results. Id. at 788. In that

case, for example, the plaintiff slipped and fell on a grape in 

a grocery store. The grapes were packaged in individual bags 

that were easily opened by hand and, thus, were susceptible to 

spillage by customers. Id. at 781. We noted that the evolution 

of grocery stores from clerk-assisted to self-service operations 
7

created new risks to customers, "who generally may not be as 

careful and vigilant as a store owner because customers are not 

focused on the owner's concern of keeping items off the floor to 

avoid potential foreseeable risks of harm to other patrons." 

Id. at 784-785.

Given that the notice inquiry in slip and fall cases is 

generally a factor of how long the dangerous substance has been 

on the floor, we concluded that it would be "'unjust to saddle 

the plaintiff with the burden of isolating the precise failure'

that caused an injury, particularly where a plaintiff's injury 

results from a foreseeable risk of harm stemming from an owner's 

mode of operation." Id. at 788, quoting Wollerman v. Grand 

Union Stores, Inc., 47 N.J. 426, 430 (1966). Accordingly, we 

held that the notice requirement would be satisfied 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." Sheehan, 

448 Mass. at 791.

Our adoption of the mode of operation approach in Sheehan

did not supplant the general requirement that the plaintiff 

prove notice, nor did it modify in any way the remaining two 

elements of premises liability set forth in the Restatement 

(Second) of Torts § 343. Sheehan, 448 Mass. at 792. Rather, it 
8

refined the Restatement's notice requirement in a narrow subset 

of premises liability cases. The defendant argues that this 

narrow subset of cases is strictly confined to slip-and-fall 

incidents occurring in self-service establishments. We 

disagree.

The principles set forth in the Restatement (Second) of 

Torts are consistent with the application of the mode of 

operation approach outside of the context of self-service 

establishments. The Restatement provides that a possessor of 

land who holds it open to the public for business purposes has a 

duty to exercise reasonable care to protect business visitors 

from harms caused by third parties, e.g., other business 

visitors. Restatement (Second) of Torts § 344. The comments 

observe that although a warning will often supply the necessary 

protection, there are "many situations in which the possessor 

cannot reasonably assume that a warning will be sufficient." 

Id. at § 344 comment d. In such a situation, the landowner is 

"required to exercise reasonable care to use such means of 

protection as are available, or to provide such means in advance 

because of the likelihood that third persons . . . may conduct 

themselves in a manner which will endanger the safety of the 

visitor." Id. These comments reflect fundamental principles of 

tort liability that transcend the distinction between an errant 

grape in a supermarket aisle and a spilled beverage on a dance 
9

floor. See Sheehan, 448 Mass. at 788, quoting Restatement 

(Second) of Torts § 343 comment e ("one entering a store, 

theatre, office building, or hotel . . . is entitled to expect 

that his host will make far greater preparations to secure the 

safety of his patrons than a householder will make for his 

social or even his business visitors").

The defendant suggests that applying the mode of operation 

approach outside of the self-service context will result in a 

regime of strict liability. We again disagree. The law demands 

reasonable care, not perfection. See Restatement (Second) of 

Torts §§ 343, 344. See also Sheehan, 448 Mass. at 790 

("Adoption of [the mode of operation] approach would not hold 

owners strictly liable to all plaintiffs involved in slip-andfall incidents on their premises"). Irrespective of the 

particular mode of operation involved, the plaintiff bears the

burden of establishing that the defendant failed to exercise 

reasonable care in protecting its patrons from the unsafe 

conditions facilitated by its mode of operation.

4 See id. at

790-791.

 

4 In the case of a nightclub operating with bars on the 

dance floor and permitting patrons to dance with their drinks, 

such reasonable care might include the employment of sufficient 

staff charged with monitoring and cleaning up spilled liquid on 

the dance floor at sufficient intervals, or the use of beverage 

containers on the dance floor that are less likely to spill 

liquid when jostled. See Restatement (Second) of Torts § 344 

comment f (1965).
10

Nonetheless, it is true that "nearly every business 

enterprise produces some risk of customer interference," and, in 

the absence of limiting principles, "[a] plaintiff could get to 

the jury in most cases simply by presenting proof that a store's 

customer could have conceivably produced the hazardous 

condition." Chiara v. Fry's Food Stores of Ariz., Inc., 152 

Ariz. 398, 400-401 (1987). In view of these concerns, the court 

in Sheehan limited the mode of operation approach to situations

where a business should reasonably anticipate that its chosen 

method of operation will regularly invite third-party 

interference resulting in the creation of unsafe conditions, and 

a visitor suffers an injury after encountering the condition so 

created. Sheehan, 448 Mass at 791. The court in Sheehan did 

not, however, limit this modern refinement of the notice 

requirement to unsafe conditions arising from self-service 

operations. See generally id. at 785-786, 791, citing Jackson

v. K-Mart Corp., 251 Kan. 700, 701, 710-711 (1992) (spilled 

juice purchased from in-store cafeteria). See also Gump v. WalMart Stores, Inc., 93 Haw. 417, 419-421 (2000) (fallen french 

fry purchased from in-store fast-food restaurant); McDonald v. 

Safeway Stores, Inc., 109 Idaho 305, 307-308 (1985) (melted ice 

cream dispensed by employees). As was aptly observed in Konesky

v. Post Road Entertainment, 144 Conn. App. 128, 140-141 (2013), 

a case on which the defendant relies, self-service is one 
11

"situation in which the proprietor's 'operating methods' enhance 

the risk of recurring dangerous conditions brought about by 

third party interference . . . but it logically is not the only 

business method that can have such an effect." Accordingly, we 

now state explicitly what was implicit in Sheehan, namely, that 

so long as the aforementioned parameters for applying the mode 

of operation approach exist, there is no basis for limiting its 

application to self-service establishments.5

c. Defendant's mode of operation. Alternatively, the 

defendant argues that even if the mode of operation approach 

could be applied outside of the self-service context, it should 

be further narrowed to exclude situations where a nightclub's 

only feasible method of operation is to serve drinks to patrons 

who are free to move about the premises. In support of this 

position, the defendant attempts to analogize this case to 

Konesky, 144 Conn. App. at 141-142, a case involving a nightclub 

that served cans and bottles of beer to patrons from large 

plastic tubs filled with ice. Id. at 130-131. The plaintiff in 

that case slipped and fell on a puddle located near one of the 

"beer tubs" and sustained injuries. Id. at 131. She filed a 

 

5 The defendant asserts that this so-called "extension" of 

the mode of operation approach constitutes a new rule that may 

only be applied prospectively. For the reasons stated in 

Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 791 n.9 

(2007), we reject this assertion.
12

negligence action against the nightclub, arguing that the

nightclub's use of the beer tubs created an inherent risk of 

recurring danger meriting the application of the mode of 

operation approach. Id. at 131-132. The court disagreed, 

concluding instead that the traditional approach was 

appropriate. Id. at 143-144.

The analogy to Konesky fails because the slippery condition

in that case arose not from third-party interference, but from

the employees' failure to wipe off the dripping wet cans and 

bottles before handing them to patrons. Id. at 141 & n.11. As 

the court explained, the mode of operation approach is 

superfluous where the defendant, rather than a third party,

affirmatively causes the unsafe condition. Id. See Sheehan, 

448 Mass. at 782-783, 786 (under traditional approach, plaintiff 

must prove either that owner caused unsafe condition or had 

notice of it; under mode of operation approach, foreseeability 

of condition satisfies notice requirement). Although the 

plaintiff in the Konesky case also argued that patrons 

exacerbated the unsafe condition by carrying the dripping 

beverages around the premises, the court cogently observed that 

the same is true any time "a patron orders a bottle of beer at a 

bar, a nightclub, or a wedding reception." Konesky, 144 Conn. 

App. at 142. We agree with the Konesky court that an 

establishment "does not create liability under the mode of
13

operation doctrine simply by serving chilled beer." Id. at 143. 

Importantly, however, those are not the facts of this case.

Here, the nightclub's mode of operation included the sale 

of beverages in plastic cups from bars located on a dance floor. 

The patrons were then permitted to dance while holding their 

beverages. It was reasonably foreseeable that such a mode of 

operation would result in a recurring theme of cups being 

jostled and liquid being jettisoned by patrons onto the dance 

floor. Where that liquid is spilled on a floor, crowded with 

dancers, in a dimly lit setting with flashing strobe lights, and 

the only route of travel to and from the lounge area is across 

that dance floor, common sense tells us that the spill creates 

an unsafe condition that a patron such as the plaintiff is illsuited to discern, except, perhaps, by the happenstance of a 

slip and fall.

Although the general risk of an unsafe condition occurring

might be equally obvious to both owner and patron, under these 

circumstances, the owner is in a far better position to identify 

and investigate the source of the condition once it has 

occurred. Sheehan, 448 Mass. at 789. Moreover, it is not 

reasonable for the owner to ignore a recurring risk of danger 

arising from its chosen mode of operation where it would be 

reasonable to expect that a patron who has entered the 

establishment for the purpose of dancing would choose to 
14

encounter that risk rather than turn back. See Restatement 

(Second) of Torts § 344 & comment d. Cf. Papadopoulos v. Target 

Corp., 457 Mass. 368, 379 (2010) ("It is not reasonable for a 

property owner to leave snow or ice on a walkway where it is 

reasonable to expect that a hardy New England visitor would 

choose to risk crossing the snow or ice rather than turn back or 

attempt an equally or more perilous walk around"). Yet, in 

cases such as this, the owner has scarce incentive to act 

reasonably, because the injured patron will seldom be able to 

discern the origin of the unsafe condition and, thus, satisfy 

the notice requirement under the traditional approach to 

premises liability. See Sheehan, 448 Mass. at 788 ("traditional 

approach requires plaintiffs to prove how long the substance 

creating the hazardous condition has been on the floor, thereby 

imposing an unfair burden on them to adduce evidence that is 

more readily accessible to defendants"). It is apparent, 

therefore, that the policies underlying the mode of operation 

approach apply with the same force here as they did in Sheehan. 

Fidelity to those policies demands that the mode of operation

approach be applied in this case.

At oral argument, the defendant warned of the parade of 

horribles that would follow such a result. According to the 

defendant, courts will begin applying the mode of operation 

approach to any establishment in which patrons are permitted to 
15

carry their own drinks, whether they are traveling, for example, 

from a bar to a table in a restaurant or from a concession stand 

to their seats at a sporting event. We dispel any such notion. 

A plaintiff does not get to the jury simply by showing that an 

establishment sells drinks to patrons who are then allowed to 

travel about the premises. See Konesky, 144 Conn. App. at 142. 

A plaintiff may get to the jury, however, by showing that

patrons who wish to travel between the bar and their seats are 

forced -- as a recurring feature of the mode of operation -- to 

navigate in the dark through a crowd of dancing people holding 

plastic cups filled with liquid over a wooden floor. Spillage 

is conceivable in either circumstance, but only in the latter is 

the regularity of such spillage tied to the mode of operation in 

a manner that justifies placing the business on notice of the 

resulting unsafe condition. See Chiara, 152 Ariz. at 400-401.

Finally, the defendant argues that the mode of operation 

approach is inappropriate on the facts of this particular case, 

because there is no evidence of regular spillage or of a causal 

nexus between such spillage and the plaintiff's injury. These 

arguments are undercut considerably by the nightclub manager's

deposition testimony that "spills on the dance floor are part of 

the business." Considering the evidence in the light most 

favorable to the plaintiff, Augat, 410 Mass. at 120, the 

reasonable inference is that a spilled beverage produced the wet 
16

surface on which the plaintiff slipped. Cf. Leary v. Jordan 

Marsh Co., 322 Mass. 309, 310 (1948) ("There was no evidence of 

any wet spots upon the floor other than at the site of the 

accident, except near the entrance. The absence of any evidence 

of wet spots between any of the entrances and the spots in 

question negatives any contention that these spots came from 

water tracked in the store and indeed leaves the rain as the 

source of these spots a matter of conjecture and surmise"). 

Whether the defendant exercised reasonable care to protect 

patrons from such spillage is a question for the jury. Sheehan, 

448 Mass. at 792.

3. Conclusion. For the foregoing reasons, we conclude 

that summary judgment was improperly granted and that the 

defendant had notice of the inherent risks associated with its 

chosen mode of operating its dance floor. We reverse the order

granting summary judgment in favor of the defendant and remand 

the case to the District Court for further proceedings 

consistent with this opinion.

So ordered.