Boston Partner Grace Garcia was quoted for the defense bar perspective by Massachusetts Lawyers Weekly in "'Mode of Operation' Approach Expanded" (June 1, 2015). The article focused on the impact of the recent Massachusetts Appeals Court decision of Bowers v. P. Wiles.
In Bowers, the Appeals Court arguably expanded the "mode of operation" approach for the determination of liability for slip and fall actions relating to "self-service" entities as adopted by the MA Supreme Judicial Court in Sheehan v. Roche Brothers Supermarkets, Inc., in 2007. The Bowers Court decided that the "mode of operation" approach is not limited to cases in which the dangerous condition leading to a fall arises from the breakage or spillage of items offered for sale. Rather, the Court held that a plaintiff could succeed at trial by proving that a defendant failed to use reasonable measures to prevent injuries from foreseeable dangerous conditions. The dissenting judge warned that expanding the approach could expose self-service businesses to liability unforeseen by the Sheehan court.
Grace addressed the ramifications of Bowers for defendants, noting that the decision creates a higher bar for defendants seeking summary judgement. "The dissent has it right: It does open the floodgates for plaintiffs to pursue their claims past the dispositive motion state." Nonetheless, Grace does not foresee a change in the ultimate outcome of these cases as the decision does not substantially change the defenses to these claims.
You may read the entire article here (subscription required).