Morrison Mahoney Partner Steve J. Bolotin obtained a decision in the Appeals Court affirming summary judgment in favor of our client, a hotel, in a slip and fall claim.
The plaintiff fell in a private bathroom adjacent to a conference room where she was attending a meeting. She claimed that she slipped on a foreign substance on the floor, and speculated that another hotel patron had mistaken furniture polish for air freshener and sprayed it in the bathroom. She argued that keeping furniture polish in an unlocked cabinet was negligent on the part of the hotel, and that it was foreseeable that it would be used improperly by another hotel patron. The trial court disagreed, and granted summary judgment for the hotel, holding that there was no evidence of negligence on the part of the hotel and no notice of the allegedly dangerous condition.
On appeal, the plaintiff argued that rather than apply the traditional approach, the case should be treated under the expanding “mode of operation” doctrine. The "mode of operation" doctrine places a landowner on notice of the allegedly defective condition when the way it operates results in a dangerous condition which repeatedly occurs, even if the condition is caused by other guests. The Appeals Court rejected that argument in this instance, noting that the condition at issue was not the result of a business operation and was not a repeated condition of which the hotel should have been aware. While the decision is unpublished, it provides a good summary of the development of the mode of operation doctrine, and an argument for limiting its use.