Sarkisian v. Concept Restaurants, Inc. (Lawyers Weekly No. 10-100-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11786 ANGELA SARKISIAN  vs.  CONCEPT RESTAURANTS, INC.[1] Worcester.      March 5, 2015. – June 23, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Negligence, One owning or controlling real estate.  Notice.  Practice, Civil, Summary judgment.       Civil action commenced in the Worcester Division of the District Court Department on July 6, 2010.   The case was heard on a motion for summary judgment by Steven E. Thomas, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Karen L. Stern for the plaintiff. Richard L. Neumeier for the defendant. Charlotte E. Glinka, Michael C. Najjar, & Thomas R. Murphy, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. John F. Brosnan, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.   CORDY, J.  In this case we decide whether the “mode of operation” approach to premises liability, adopted by this court in Sheehan v. Roche Bros. Supermkts., Inc., 448 Mass. 780, 788 (2007), applies to slip-and-fall incidents occurring outside of the context of self-service establishments.  Traditionally, a plaintiff asserting premises liability has been required to show that the owner of the premises had actual or constructive notice of an unsafe condition that gave rise to an injury for which compensation is sought.  See id. at 782-783.  Under the mode of operation approach, however, the plaintiff satisfies 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.  See id. at 786. The plaintiff, Angela Sarkisian, broke her leg after slipping and falling on a wet dance floor at a nightclub owned by the defendant, Concept Restaurants, Inc.  A judge in the District Court granted summary judgment in favor of the defendant based on the plaintiff’s inability to show that the defendant had actual or constructive notice of the unsafe condition that caused her injury.  We conclude that, on the facts presented by this case, the mode of operation approach applies and summary judgment granted to the defendant must be reversed.[2] 1.  Background.  We recite the material facts in the light most favorable to the plaintiff, the party who opposed the motion for summary judgment.  Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).  The defendant […]

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