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A recent ruling by the Appeals Court clarified the so-called “mode of operation” approach to premises liability.   Under the approach, a plaintiff injured as the result of a dangerous condition on an owner’s property is relieved of the need to prove that the owner had actual or constructive notice of the condition if he instead establishes that the dangerous condition was “related to the owner’s self-service mode of operation.”   In Bowers v. P. Wile’s the court ruled that the mode of operation approach does not only apply where the dangerous condition results from breakage or spillage of items offered for sale.

The plaintiff in Bowers fell on the sidewalk after stepping on a small stone lying on the concrete near an outside sales area.   The merchandise lies “both within the porch area and on and around a gravel area” where customers are allowed to help themselves to products from those areas.   Bowers’ reasoning was based on “the foreseeable likelihood that hazards could result from the owner’s self-service mode of operation, and that such “conditions may include, but are not limited to, spilled foreign substances or fallen matter”.

A self-service area establishes a certain amount of risk to its customers. Customers move items and handle merchandise causing disruption of the store’s arranged display which could result in hazardous conditions.   Bowers states that “self-service operation involves the reasonable probability that these risks are foreseeable.”

Bowers concluded that the application of the mode of operation approach does not alone establish liability on of the landowner.  It remains for the plaintiff to prove that “an ordinary prudent person in the defendant’s position would have taken steps, not taken by the defendant, to prevent the accident that occurred.

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