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As I wrote in a recent blog, lawsuits arising from slipping on a foreign substance in a Massachusetts premises were made difficult by the rule that the plaintiff had to show the substance was on the ground long enough for the proprietor to become aware of, and remove it. Many a significant slip and fall case never made it past summary judgment, because of the rule, which the courts considered a rule of adequate notice. Many more cases were never pursued for lack of an attorney willing to accept it.

In the case of Sheehan v. Roche Brothers Supermarket, just handed down by the Supreme Judicial Court of Massachusetts (the “SJC”), the court abandoned the rule for one more in keeping with the rules of liability and causation in other areas of tort. The SJC held that if the plaintiff shows that a store’s “mode of operation,” made the dangerous condition reasonably forseeable, and the defendant failed to take adequate precautions, the plaintiff no longer has to show how long the substance was on the ground.

The new rule will make a wide range of slip and fall cases more attractive to Massachusetts personal injury attorneys. In supermarkets, for example, the maintenance of open, self-help bins of vegetables, wet due to misting, would seem to create a “mode of operation,” making wet vegetable matter on the floor, reasonably forseeable. Poorly trained employees, improper stacking techniques, insufficient inspection of floors, might all be considered as “modes of operation,” making a hazardous condition reasonably forseeable. Although the impact of the Sheehan case will have to await implementation in a series of trial court and further appellate cases, it seems that Massachusetts slip and fall plaintiffs now have a more ordinary burden of proof, rather than a specially designed evidentiary hurdle.

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