Bowers v. P. Wile’s Inc. (Lawyers Weekly No. 10-107-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11923 LINDA S. BOWERS vs. P. WILE’S, INC.[1] Middlesex. January 7, 2016. – July 28, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2] Negligence, Retailer. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 24, 2012. The case was heard by Paul D. Wilson, J. on a motion for summary judgment, and a motion to vacate judgment was also heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Joseph T. Black for the defendant. David McCormack for the plaintiff. The following submitted briefs for amici curiae: William P. Mekrut for Massachusetts Defense Lawyers’ Association. Carol A. Kelly for Property Casualty Insurers Association of America. Annette Gonthier Kiely, Michael C. Najjar, Tomas R. Murphy, & Elizabeth N. Mulvey for Massachusetts Academy of Trial Attorneys. DUFFLY, J. In this case we are called upon to determine whether the “mode of operation” approach to premises liability, see Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 683 (2015) (Sarkisian), and Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788 (2007) (Sheehan), is applicable with respect to the operation of a garden store. The plaintiff, Linda Bowers, suffered a displaced fracture of her right hip after she slipped and fell on a walkway leading into a Cape Cod garden store owned by the defendant, P. Wile’s, Inc., doing business as Agway of Cape Cod (Agway). Agway maintains what the parties refer to as a “gravel area” near the concrete walkway leading into the store, where landscaping items are displayed for sale. Customers may enter the gravel area, which consists of small stones less than one inch in diameter,[3] and shop for products displayed there without assistance from any Agway employee. After she fell on Agway’s premises, Bowers filed a complaint in the Superior Court asserting that she tripped on a stone that had migrated from the gravel area to the walkway, and that Agway knew that the movement of the stones from the gravel area created a risk of tripping on the walkway, but failed to take reasonable steps to mitigate that risk. Agway moved for summary judgment, arguing that, under the traditional theory of premises liability, where […]