Negligence – Mode of operation – Sporting event

If the defendant owner-operator of TD Garden has sought summary judgment for negligence on the part of a plaintiff spectator who slipped and fell five or six seconds after another spectator spilled liquid on the concourse floor, that motion should be granted because the plaintiff has failed to demonstrate the duty to notify of its negligence claim.

“This case follows a slip and fall at a hockey game at TD Garden in Boston. Jurisdiction is based on diversity of citizenships.

Plaintiff Alexander Raheb slipped on the wet floor while walking to his seat at a Boston Bruins game and injured his leg. TD Garden is owned and operated by Defendants Delaware North Companies, Inc.-Boston. UG2 LLC hired Delaware North to provide arena janitorial services during events. The lawsuit alleges each defendant’s failure to protect the premises from slip hazards and to allow drinks in plastic cups with no lids to be sold. …

“Video of the incident showed that five or six seconds before the fall, another guest spilled liquid on the floor, where Raheb then slipped. …

“Delaware North contends that the summary judgment on the alleged negligence claim is reasonable because the plaintiff was unable to show, based on either traditional or operating theory, that Delaware North was aware of the hazardous condition leading to the fall have led. Because the plaintiff failed to demonstrate the obligation to provide notice for its negligence claim, the court does not advance the defendant’s additional argument that the precautions taken to protect customers from hazardous conditions were adequate. …

“Here the plaintiff admits that he cannot assert himself with a traditional theory of building liability. … He claims the liquid that caused him to slip lay on the ground for about five to six seconds before he fell. There is no evidence that Delaware North knew or should have known about the disease during this period. …

“Instead, the plaintiff proceeds from a ‘mode of operation’ theory. …

“In Sarkisian vs. Concept Restaurants, Inc., 471 Masses. 679 (2015), the Massachusetts Supreme Court addressed an argument somewhat similar to that presented here. …

“A year later, the SJC looked at the ‘mode of operation’ theory again Bowers v P. Wile’s, Inc., 475 measures. 34 (2016). …

“The main question here is whether Bowers should be read to (effectively) override Sarkisian. In these circumstances, the court concludes that this should not be the case. …

“… In short, the conclusion in Bowers – that the theory of operation applies in the context of a retail store selling landscaping supplies – does not require the court to dismiss the representations Sarkisian that the theory would not normally be applicable to a concessionaire selling drinks at a sporting event. …

“In any event, it is not for this court to determine Massachusetts public policy as to whether sports venues may be required to serve beverages with leak-proof lids. That is because of the Commonwealth legislature, which has remained silent, and its courts, which have not. The SJC has made it clear that it intends to “dispel any … notion” that the functionality theory would automatically apply to “any establishment where guests are allowed to take their own drinks,” including places where “they travel”. …from the concession stand to their seats at a sporting event.” Sarkisian471 meas. at 687. This is sufficient for the Court to conclude that the Commonwealth courts would not apply the mode of operation theory in the circumstances presented here and therefore enter summary judgment in favor of the defendant on that theory of liability.

“Accordingly, Delaware North’s motion for summary judgment on Count 1 is granted.”

Raheb v. Delaware North Companies, Inc. – Boston et al. (Lawyers Weekly #02-297-23) (14 pp) (Saylor, CJ) (Civil Complaint #21-10910-FDS) (July 7, 2023).

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