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Where a negligence case arose from a plaintiff’s slip and fall at TD Garden in Boston, the lower court did not err in concluding that the courts of the commonwealth would not apply the mode-of-operation theory under the circumstances presented, so a grant of summary judgment in favor of the defendant owner of the arena should be affirmed.
“On April 13, 2019, [plaintiff Alexander] Raheb attended a Boston Bruins game at TD Garden, a 19,600-seat sports arena in Boston, Massachusetts, along with three friends, including Fahim Manzur. After entering TD Garden, Raheb and Manzur made their way to their balcony level seats and stopped at a concession stand on the balcony concourse level across from the entrance to their seats. Raheb purchased a hotdog and a beer. Raheb’s recollection is the beer was sold in a cup that did not have a lid.
“Beer and hotdog in hand, Raheb and Manzur walked through the concourse to their balcony seats. Raheb testified that the concourse was very busy, and he was not greatly impacted in his ability to move through the concourse. About 40 or 50 feet beyond the concession stand, before passing through the entrance to his seat, Raheb slipped and fell on the white tile concourse floor. He landed on his kneecap, rupturing his left quadricep tendon. Raheb had to undergo surgery and physical therapy, incurred substantial medical bills, and missed time from work.
“Neither Raheb nor Manzur observed any liquids or other hazards on the concourse floor before the fall. After the fall, Manzur saw a ‘fairly clear’ liquid on the ground where Raheb slipped but could not identify its source. At the time when Raheb fell, there were no persons who appeared to be employed by TD Garden around the area.
“Raheb alleges that he slipped on this liquid, which Delaware North’s video footage shows had been spilled approximately five or six seconds earlier by another patron. That patron had been carrying one cup of beer in each hand, with a sports logo ‘Terrible Towel’ draped over the shoulder, when the towel fell on the floor. The patron handed one cup of beer to another person but kept the other cup in hand as the patron bent down to pick up the towel. …
“The issue before us is whether Raheb may get to a jury on the mode-of-operation notice theory under Massachusetts law. …
“As the district court held, ‘the language of Sarkisian [v. Concept Rests., Inc., 32 N.E.3d 854 (Mass. 2015)] is explicit,’ … — ‘[a] plaintiff does not get to the jury simply by showing that an establishment sells drinks to patrons who are then allowed to travel about the premises’ such as ‘from a concession stand to their seats at a sporting event.’ Sarkisian, 32 N.E.3d at 861. Raheb has presented no evidence beyond this showing, and we must follow this statement from Massachusetts’ highest court.
“Raheb argues that he has shown more, that ‘[d]efendant’s mode of operation forced thousands of patrons, including Plaintiff, to walk purposefully through corridors crowded with other patrons carrying open cups of beer over a bright white tile floor that makes spilt beer difficult to observe until after a slip and fall has occurred.’ But none of these facts distinguish TD Garden from any other ‘establishment in which patrons are permitted to carry their own drinks … from a concession stand to their seats at a sporting event.’ Sarkisian, 32 N.E.3d at 861.
“… In Sarkisian, the SJC held that on the facts there, the regularity of spillage was so tied to the mode of operation, where ‘patrons who wish[ed] to travel between the bar and their seats [we]re forced — as a recurring feature of the mode of operation — to navigate in the dark through a crowd of dancing people holding plastic cups filled with liquid over a wooden floor.’ … Not so here. There is no evidence that TD Garden was dimly lit or employed ‘flashing strobe’ or similar lighting or that its sports fans regularly jostled each other and caused spills. In fact, Raheb testified in his deposition that though the concourse was very busy, he was not greatly impacted in his ability to move through it.”
Raheb v. Delaware North Companies, Inc. – Boston (Lawyers Weekly No. 01-233-24) (18 pages) (Lynch, J.) Appealed from a decision by Saylor, J., in the U.S. District Court for the District of Massachusetts. Casby Harrison III, with whom Gerard M. DeCelles and Harrison Law Associates were on brief, for the plaintiff-appellant; Joseph G. Yannetti, with whom Morrison Mahoney LLP was on brief, for the defendant-appellee (Docket No. 24-1230) (Oct. 31, 2024).
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