TD Garden Not Liable for Bruins Fan’s Slip-and-Fall

TD Garden’s owner Delaware North and its janitorial service are not liable for the injuries an attendee at a Boston Bruins hockey game suffered when he slipped and fell on the Boston arena’s concourse floor.

Alexander Raheb had argued that the venue and cleaning service were jointly and severally liable for his injuries because they should have foreseen that Delaware North’s “mode-of-operation” was likely to lead to spills. The mode-of-operation involves selling drinks in plastic cups with no lids that patrons had to transport from the concession stand to their seats.

But the federal court for the district of Massachusetts has dismissed the claims against TD Garden, despite the state’s highest court (Sarkisian v. Concept Restaurants, 2015) having previously found a nightclub where patrons had to carry their drinks across a dance floor liable for a slip-and-fall under a “mode-of-operation” theory.

When he fell, Raheb was returning to his seat with a beer and hot dog that he bought from a concession stand. He landed on his kneecap, rupturing his left quadricep tendon. He underwent surgery and physical therapy, incurring substantial medical bills and missing time from work.

Traditionally, a plaintiff asserting premises liability has been required to show that the owner of the premises had actual or constructive notice of an unsafe condition that gave rise to the injury. In cases involving a spillage on the floor of a business, the notice requirement has been satisfied where the owner caused the substance to be on the floor, where the owner had actual knowledge of its presence, or where the spill had been on the floor so long that the owner should have been aware of the condition.

In the circumstances of this TD North case, where video showed that a spill occurred just five or six seconds before Raheb slipped on the floor, even Raheb conceded that he could not prevail under a traditional theory of premises liability. There was no evidence that Delaware North knew of or should have become aware of the condition during that time period.

Raheb instead proceeded on a “mode-of-operation” theory. This theory “removes the burden on the victim of a slip and fall to prove that the owner or the owner’s employees had actual or constructive notice of the dangerous condition or to prove the exact failure that caused the accident.”

Raheb relied upon the 2015 nightclub ruling (Sarkisian) in which the Massachusetts Supreme Court concluded that it would be unfair to require the plaintiff to prove that the business had notice of the dangerous condition, because “the owner is in a far better position to identify and investigate the source of the condition once it has occurred.”

However, in that ruling the state court also advised that “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.”

The federal court read the state ruling to mean that notice may still be required.

Delaware North argued for summary judgment on the grounds that, under either a traditional or mode-of-operation theory, Raheb could not establish that Delaware North had notice of the dangerous condition leading to the fall.

The federal court agreed and found that Raheb did not establish that TD Garden had actual notice or that it should have known that its mode-of-operation would lead to spills. The court stressed that a sports venue is different than a nightclub.

The federal court differentiated the TD Garden case from the nightclub case. The nightclub’s mode of operation included the sale of beverages in plastic cups from bars located on a dance floor. Patrons were permitted to dance while holding their beverages. The only way to the lounge area from the bar was through the dance floor, which was dimly lit by flashing strobe lights and crowded with dancers. According to the state’s high court, “common sense” said that a spill in that environment creates an unsafe condition that a patron is ill suited to discern, except, perhaps, by the happenstance of a slip and fall.

On the other hand, a hockey arena is not normally darkened, does not normally use strobe lights, and does not normally feature dancing patrons, much less ones carrying drinks, the court continued. An arena certainly can be crowded, but not ordinarily to the degree of a nightclub dance floor. The court noted that Raheb testified that the concourse was very busy, but that did not affect his ability to move through the concourse.

Thus, in its mode-of-operation, a hockey arena like TD Garden is unlike a nightclub and the arena owner is not on notice that its operation is likely to produce spills, the federal court determined in dismissing Raheb’s injury claims.

Even if he had met the notice requirement, either by a traditional or mode-of- operation theory, the court noted that Raheb would still bear the burden of establishing that the TD Garden failed to exercise reasonable care in protecting its patrons from the unsafe conditions facilitated by its mode of operation.

The court noted that there are reasons that serving drinks at a sporting event might present special issues. For example, unlike in a bar where proof of age for alcohol can be determined at the door or at the point of sale, it would be impractical for vendors walking up and down the aisles to obtain proof of age before selling a cup of beer. The court said it would also be “difficult, if not impossible,” for vendors in the aisles to make an informed judgment as to the sobriety of a customer some distance away. Overall, “service at concession stands may therefore be the only realistic and practical option, and that mode of operation contemplates that the customers will necessarily carry their beverages back to their seats.”

Finally, the court noted, sporting events, concerts and similar events also have different security concerns, including that liquid containers can be used as missiles by disgruntled or angry fans against opposing teams or referees; for that reason, such venues rarely, if ever, sell cans or bottles of beer.

Topics Delaware