Stephen Bazarian Published in Massachusetts Lawyers Weekly
"Expanding mode of operation approach: up next, hospital cafeterias"

Seyfarth Shaw Litigation attorney Stephen Bazarian wrote an Op/Ed published in Massachusetts Lawyers Weekly on July 4. The article discussed the new wave of tort claims arising from hospital cafeterias, sparked by the "mode of operation approach" which, adopted in 2007, "radically alters the burden of proof" required for plaintiffs to show and "virtually removes" the "weapon" of summary judgment from the defending property owner.

Stephen mentions the holding in Shawki v. Massachusetts General Hospital, in which the plaintiff slipped and fell on a french fry that was on the floor of a cafeteria owned and operated by the hospital. The judge denied the hospital's motion for summary judgment, stating that the "mode of operation approach," in which a plaintiff can satisfy the notice requirement by establishing that an injury was caused by a "reasonably foreseeable dangerous condition" on the property owner's premises that relates the property owner's mode of operation, was "warranted and inevitable" because the hospital failed to establish that the plaintiff could not prove notice using the mode of operation approach. Stephen points out that this differs from the "traditional approach," in which a plaintiff must prove that the defendant property owner had notice about the unsafe condition causing the injury.

According to Stephen, this ruling significantly increases hospital exposure to patient and visitor claims. He suggests some best practices to help hospitals avoid liability:

• Designate individuals to inspect the premises for unsafe conditions periodically, and keep a log of these "sweeps;"
• Provide training to cafeteria employees on how to search for, identify and fix unsafe conditions; and
• Create a report for every accident that occurs in a hospital cafeteria.

Stephen also recommends that hospitals that own or operate cafeterias retain counsel to audit existing policies and practices and advise on creating or adding new policies to help prevent future liability claims.