By Stephen C. Bazarian

Hospital risk managers in Massachusetts may be blind-sided by a new wave of tort claims coming their way. The claims are not the malpractice actions that hospitals so often see. They have nothing to do with medical care and don’t arise out of activities in the ER, operating room or radiology lab.

Instead, these claims arise in the cafeteria, a place where virtually everyone who visits a hospital — patients and their families and friends, physicians and consultants — go each day.

On March 24, in the case of Shawki v. Massachusetts General Hospital, a Suffolk Superior Court judge extended the “mode of operation” approach for premises liability actions to a case brought by a plaintiff who suffered injuries in a fall in a hospital cafeteria.

The mode of operation approach, adopted in 2007 by the Supreme Judicial Court in Sheehan v. Roche Bros. Supermarkets, Inc., radically alters the burden of proof that plaintiffs are required to satisfy in premises liability actions. It also virtually removes from a defendant property owner’s arsenal the weapon of summary judgment.

The application of the mode of operation approach to a hospital cafeteria means that hospitals will now be faced with the same increased exposure and protracted litigation that supermarkets and other retailers have experienced in premises liability cases since Sheehan.

Traditional approach

In any premises liability case, a plaintiff is required to prove that the defendant property owner had notice of the unsafe condition that caused his injury.

Prior to Sheehan, the plaintiff could show notice in one of several ways. First, he could present evidence that the premises owner caused the unsafe condition. In the alternative, he could present evidence that the owner had actual knowledge of the unsafe condition.

To establish notice using those two methods, a plaintiff was required to present some evidence, either direct or circumstantial, concerning the precise failure that caused the unsafe condition.

The plaintiff could also prove notice by presenting evidence that the unsafe condition had been present for such a length of time that the property owner, in the exercise of reasonable care, should have been aware of it and taken steps to either remedy the condition or warn customers of its existence.

Absent direct evidence of the length of time that an unsafe condition existed, such as a witness who saw the condition at a specific time, notice under the test was typically established by circumstantial evidence concerning the physical condition of the unsafe condition, such as a crushed grape on the floor.

In order to ultimately prevail on a premises liability claim, the plaintiff must also establish that the property owner failed to act reasonably under all of the circumstances to prevent his injury.

For example, a property owner with actual or constructive notice of an unsafe condition will not be held liable for a plaintiff’s injuries when the owner did not have a reasonable amount of time to remedy the condition before the plaintiff was injured.

A major benefit of the traditional approach is that it provides defendants with ample opportunity to obtain summary judgment on the plaintiff’s claims. A property owner may be awarded summary judgment by presenting evidence that neither it nor its servants caused, or had any knowledge of, the unsafe condition and that, as a matter of law, the condition had not existed for so long that the property owner should be charged with constructive notice of its presence.

Similarly, a property owner could obtain summary judgment by establishing that the plaintiff could not present sufficient evidence at trial to prove how the unsafe condition occurred or that the property owner knew or should have known of its presence.

Finally, a property owner could be awarded summary judgment by showing that the physical appearance of the unsafe condition indisputably established that it had not been present for so long that the owner should be charged with notice of its existence.

Those summary judgment arguments are particularly helpful to chain retailers with numerous locations that are repeatedly confronted with less than meritorious premises liability claims.

Mode of operation approach

The mode of operation approach adopted by the SJC in Sheehan does not eliminate the premises liability plaintiff’s burden to prove that the property owner had notice of an unsafe condition. It does, however, add an additional arrow to a plaintiff’s quiver by creating a new method by which that notice can be established.

Under the mode of operation approach, a plaintiff can satisfy the notice requirement by establishing that his injury was attributable to a reasonably foreseeable dangerous condition on the property owner’s premises that is related to the owner’s mode of operation.

A property owner’s mode of operation is typically the method or manner by which it merchandizes or sells its product. Under this approach, a plaintiff is not required to establish notice by presenting evidence concerning the actual unsafe condition that caused his injury. A plaintiff can establish notice by showing that a property owner’s mode of operation makes it reasonably foreseeable that the dangerous condition that caused his injury, such as a piece of lettuce that fell from a display case, will occur.

In Sheehan, the SJC adopted the mode of operation approach in recognition of the fact that most, if not all, supermarkets engage in self-service merchandising and not the outdated individualized clerk assistance in which the traditional approach is rooted.

The court noted that the modern mode of operation typically causes spillage and breakage by customers who may not be as vigilant as the store owner in keeping items off the floor to avoid risk of harm to other patrons.

Despite Sheehan’s focus on self-service merchandising, however, most commentators agree that the mode of operation approach applies to any method of product sale by a property owner that could create a reasonably foreseeable unsafe condition.

Indeed, since Sheehan, Massachusetts courts have applied the mode of operation approach to businesses other than supermarkets. However, before Shawki, no Massachusetts court had applied the approach to a hospital cafeteria.

The mode of operation approach greatly decreases the plaintiff’s burden of proof in premises liability cases. Based on my experience litigating numerous mode of operation approach cases, it is not difficult for a plaintiff to establish, through either direct or circumstantial evidence, that his injury was the result of a condition that could have been reasonably foreseen to occur as a result of a property owner’s mode of operation.

Most courts will hold that a plaintiff has made that showing merely by establishing that the unsafe condition that caused his injury has occurred more than once or twice on the defendant’s premises.

As a result, a defendant’s ability to move for summary judgment on the element of notice has been virtually eliminated.
The focus of litigation in a mode of operation approach case is typically on the reasonableness of the measures the property owner took to prevent the plaintiff’s injuries, an issue that is almost always one of fact.

‘Shawki v. Massachusetts General Hospital’

In Shawki, the plaintiff slipped and fell on a French fry on the floor of the Eat Street Café, a cafeteria owned and operated by Massachusetts General Hospital. The cafeteria contained an area where the food was located, a section of cash registers close to the exit, and an area where customers could dispose of their trays and leftover food.

The plaintiff alleged that her accident was the result of MGH’s negligence.

MGH moved for summary judgment on the plaintiff’s claims. Relying on the traditional approach, MGH argued that the plaintiff could not establish that the French fry was present for so long that MGH should have had constructive notice of its presence.

However, Judge Linda E. Giles denied MGH’s motion. Giles noted that “[t]he traditional premises liability approach … has been modified in recent years to accommodate modern merchandising techniques.”

The judge also noted that the mode of operation approach has been extended by courts in other states to cases involving injuries in cafeterias.

While acknowledging that the case was one of first impression in Massachusetts, Giles held that extending the mode of operation approach to MGH’s cafeteria was “warranted and inevitable.” She denied MGH’s motion because it had failed to establish that the plaintiff could not prove notice using the mode of operation approach.

The holding in Shawki greatly increases the exposure of hospitals to claims by patients and visitors. Individuals injured in falls in hospital cafeterias, like those hurt in falls in retail establishments, may now rely on the mode of operation approach and its decreased burdens of proof to establish a hospital’s notice of an unsafe condition.

The plaintiffs’ bar, as it did after Sheehan, will no doubt sit up and take notice of this development.

What should hospitals do?

There are many simple methods by which hospitals can avoid liability for injuries to customers or patients in their cafeterias, provided that they are willing to take certain affirmative steps.

Since litigation of mode of operation approach cases focuses primarily on the reasonableness of the measures taken by the property owner to prevent the plaintiff’s injuries, these steps naturally include increased efforts to keep premises free from hazardous conditions and documenting those efforts.

First, hospital cafeterias, like most retail stores, should designate certain employees or an independent company to inspect, or “sweep,” their premises for unsafe conditions. These sweeps should be conducted on a periodic basis, such as every half-hour or hour. Each sweep should be noted in a written log, often called a “sweep log,” which should be preserved.
Several companies offer hand-held devices that can electronically record and track the dates, times and areas in which sweeps are performed.

Admission at trial of information concerning these periodic sweeps, along with a carefully maintained sweep log, is persuasive evidence that a property owner has engaged in reasonable efforts to keep its premises safe.

In addition, hospitals should provide training to their cafeteria employees concerning how to search for, identify and remedy unsafe conditions. The training should be accompanied by written materials. Every employee must be charged, orally and in writing, with the responsibility of keeping the cafeteria safe for customers.

Records indicating the identities of employees who have undergone training and been provided with the written materials should be preserved.

Finally, an incident report should be created for every slip and fall or similar accident that occurs in a hospital cafeteria. The incident report should be created immediately, or as soon as possible, after an accident.

The report should include, among other things, the date, time and location of the accident, a description of how the accident occurred, the time when the area of the accident had last been swept by a hospital employee, the injuries complained of by the person who suffered the accident, and the names and addresses of all witnesses.

All this information is critical for a property owner to successfully defend against a plaintiff’s premises liability claim.

Premises liability accidents cost American businesses billions of dollars every year. Hospitals are not exempt from that exposure. In light of the holding in Shawki and other recent developments in Massachusetts premises liability law, it would be prudent for hospitals that own or operate cafeterias to retain experienced counsel to audit their existing policies and practices and help create new policies and practices that provide them with additional protection.

Doing so will help hospitals better protect patients and visitors. It will also better position them for the premises liability claims they are sure to face in the future.

Stephen C. Bazarian is senior counsel in the commercial litigation department at Seyfarth Shaw in Boston.