In 2007, the Connecticut Supreme Court in Kelly v. Stop & Shop, Inc., 281 Conn. 768, 791-92, 918 A.2d 249 (2007), recognized for the first time the “mode of operation” rule in Connecticut. As a result of that decision, plaintiffs could proceed on a theory of premises liability without establishing the notice of defect requirement in certain circumstances. Under this rule, the plaintiff customer could recover from a store proprietor without establishing actual or constructive notice if the injury was caused by a condition inherent in the way the store operated. In Kelly, therefore, the plaintiff need not establish notice of the existence of a piece of wet lettuce on the floor of a “self-service salad bar” located in the defendant’s supermarket because she had established that the salad bar created a foreseeable risk to customers and that the plaintiff’s fall had resulted from that dangerous condition. In a decision dated September 21, 2010, the Connecticut Supreme Court, however, reinforced that the mode of operation rule espoused in Kelly is meant to operate with narrow scope.
In Fisher v. Big Y Foods, Inc., 298 Conn. 414, — A.2d — (2010), the plaintiff allegedly slipped and fell in the defendant’s supermarket in one of the aisles on a clear, syrupy, puddle of liquid which appeared to be fruit cocktail syrup. Relying on Kelly, the plaintiff advanced the case at trial on the mode of operation theory. The defendant moved for a directed verdict arguing that the plaintiff could not make out a prima facie case under the mode of operation rule because there had been no evidence of the cause of the spill or that spills of that liquid were a regularly occurring hazardous condition. The defendant argued that plaintiff had to prove some particular method of doing business that increased the risk of injury to its customers. The trial court denied the motion and, following a verdict for the plaintiff, the defendant appealed.
The Supreme Court decision, authored by Chief Justice Rogers, reversed. The Court held that the mode of operation rule is not applicable where the accident is caused by a transitory hazard in a self-service establishment. Rather, the mode of operation rule applies “only to those accidents caused by particular hazards that occur regularly, or are inherently foreseeable, due to some specific method of operation employed on the premises.”
Certainly, the Fisher decision does not go so far as to limit the mode of operation rule to salad bar situations. However, the decision is a setback for plaintiffs who have come to rely on the theory to avoid the pragmatic problems in proving actual or constructive notice. Plaintiffs seeking to rely on the theory will have to show some evidence that, in the case of a spill for example, not only were spills foreseeable in the area where the plaintiff fell, but more foreseeable than the occurrence of spills in general. Indeed, Justice Palmer, in dissent stated: “under the approach that the majority adopts, the rule does not apply to the entire premises of a self-service operation, but rather, only to discrete areas within a self-service store that are particularly or uniquely hazardous.”
– Karey P. Pond
