Two plaintiffs filed suit, alleging that one of them fell at the Northshore Mall as a result of slipping on water. The plaintiffs alleged that this water was on the mall floor, due to the negligence of the defendant, which was responsible for watering the plants located in the mall. A Superior Court judge granted summary judgment to all of the defendants. The plaintiffs appealed.
Applying the traditional approach to slip and fall cases, the lower court held that the plaintiffs failed to present any evidence that would allow a reasonable jury to conclude that the defendants knew or should have known that the substance on which the plaintiff allegedly slipped was on the mall floor. The appeals court agreed.
In support of their allegation that the substance on the floor appeared during the watering process, the plaintiffs relied on the hearsay statement of one employee that the defendant had recently watered the plants prior to the fall. To surmount the issue of hearsay, the plaintiffs claimed that this statement was attributable to the defendants as a statement of an agent or servant concerning a matter within the scope of the agency or employment.
This employee was the daytime supervisor of security employed by Allied Barton Security Services; he was not an employee of any of the defendants. As the proponent of the evidence, the plaintiffs had the burden of proving the foundational facts required for the statement’s admission, which the appeals court concluded they did not do. On the record, the plaintiffs failed to establish that Igo was an agent authorized to make statements on behalf of the defendants, as required for an admission by a party opponent.
Even if the employee were considered an agent, and his statement were admissible against the defendants, under the traditional approach to premises liability, the plaintiff is required to prove the store caused a substance, matter, or item to be on the floor, the store operator had actual knowledge of its presence, or the substance, matter, or item had been on the floor so long that the store operator should have been aware of the condition. In the absence of evidence supporting the defendants’ actual knowledge of the water on the floor, the plaintiffs instead claimed that the defendants had constructive knowledge. The appeals court disagreed.
Constructive notice or knowledge can be established by evidence indicating the length of time the water was on the mall floor. Using this analysis, the plaintiffs would have been required to establish notice by showing that, based on the length of time the water had been on the floor, the defendants should have discovered it.
Here, however, there was no evidence in the record that indicated how long the water was on the floor or how it came to be there. Since there was no evidence to prove that the defendants either knew or should have known of the existence of the water or that they failed to remedy the condition within a reasonable length of time, summary judgment was appropriate for the defendants under the traditional approach to premises liability.
The plaintiffs’ “mode of operation” argument also failed. Under this analysis, the plaintiffs can satisfy 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. But since the defendants were not the owners of the mall, they could not be held liable under the mode of operation approach.
Although the Mall at Northshore, LLC, was the owner of the mall, more than mere ownership must be shown before the mode of operation approach applies. The mode of operation approach is limited to situations in which a business should reasonably anticipate that its chosen method of operation will regularly invite third-party interference, resulting in the creation of an unsafe condition, and a visitor suffers an injury after encountering the condition so created.
In sum, there was no evidence that the defendant’s watering of the plants resulted in water regularly being present on the mall floor. In fact, the evidence from depositions indicated that not only was this not a recurring event, but also water had never before been observed on the floor following watering by the defendant. As a result, the “mode of operation” approach was inapplicable, and summary judgment was properly granted to the defendants.
If you have been hurt because of someone else’s negligence, you may need the assistance of a premises liability lawyer to seek compensation. At the Neumann Law Group, our Massachusetts attorneys provide trustworthy legal representation to victims all over the state. Contact us toll-free at 800-525-NEUMANN or use our online form to set up a free consultation.
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