Kelly v. Stop & Shop, Inc.
2007 Conn. LEXIS 151, 918 A.2d 249, 281 Conn. 768 (2007)
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Rule of Law:
Under the 'mode of operation' rule, a business invitee injured by a dangerous condition in a self-service establishment may recover without proving the business had actual or constructive notice of the specific condition if the business's chosen mode of operation creates a foreseeable risk that such conditions regularly will occur and the business fails to take reasonable measures to discover and remove them.
Facts:
- On November 2, 1999, Maureen Kelly entered a Stop and Shop supermarket in Fairfield to purchase groceries and make herself a salad.
- Kelly went to the self-service salad bar, which was surrounded by a narrow, two-to-three-foot-wide floor runner, with a tile or linoleum floor beyond it.
- The salad bar lacked railings, and its four-inch ledge was too narrow to hold trays, causing patrons to hold containers over the floor while serving themselves.
- After filling an aluminum container with cottage cheese and fruit, Kelly stepped off the runner to get around her shopping cart and onto the tile/linoleum floor.
- Kelly's left foot slid, causing her to fall onto her left shoulder and dislodging her container.
- While on the floor, Kelly observed a wet, slimy piece of green lettuce on the side of her shoe, which she believed caused her fall, though she had not seen it prior to the accident.
- Nicholas J. Bishighini, the store manager, testified that the salad bar area was "precarious" because customers regularly caused items to fall, and the store had a policy of having an attendant on duty to clean and patrol the area.
- The accident report for Kelly's fall was completed almost a month later, lacked required photographs and sweeping logs, but noted she slipped on a green piece of lettuce.
Procedural Posture:
- Maureen Kelly commenced an action against Stop and Shop, Inc. in the trial court (a bench trial was held).
- The trial court found that Kelly failed to meet her burden of establishing that Stop and Shop had actual or constructive notice of the piece of lettuce, and therefore rendered judgment for Stop and Shop.
- Kelly appealed from the judgment of the trial court to the Appellate Court.
- The Connecticut Supreme Court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
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Issue:
Does the Connecticut Supreme Court adopt the 'mode of operation' rule, which allows a business invitee to recover for injuries caused by a dangerous condition in a self-service store without proof of actual or constructive notice, if the store's mode of operation created a foreseeable risk of such a condition?
Opinions:
Majority - Palmer, J.
Yes, the Connecticut Supreme Court adopts the 'mode of operation' rule because it provides the most fair and equitable approach to premises liability claims in self-service establishments. The traditional requirement of proving actual or constructive notice is incompatible with the self-service model, where dangerous conditions like spills and dropped items are a foreseeable and regular consequence of the business's operation. Self-service businesses realize economic savings by having customers perform tasks previously done by employees, and therefore, it is appropriate for them to bear the cost of foreseeable injuries unless they take reasonable precautions. Moreover, requiring an injured customer to prove how long a transitory unsafe condition existed places a difficult and often insurmountable burden on them, while businesses are in a superior position to conduct immediate investigations and implement safety measures. The 'mode of operation' rule aligns with the general duty to use reasonable care and incentivizes businesses to assign liability accurately to those who can foresee and prevent harm. This rule does not impose strict liability; a business is negligent only if it fails to use reasonable care under the circumstances to discover and correct foreseeable dangerous conditions or warn customers. The plaintiff establishes a prima facie case by presenting evidence that the defendant's mode of operation creates a foreseeable risk of injury and that the injury was proximately caused by an accident within that risk zone. The defendant can then rebut by demonstrating it exercised reasonable care. In this case, the manager's testimony about the salad bar being 'precarious' and items regularly falling, combined with the salad bar's design (no railings, narrow ledge) and the defendant's failure to follow its own safety report guidelines, provided sufficient evidence to establish a prima facie case under the new rule.
Concurring - Zarella, J.
Yes, I agree with the majority's decision to adopt the mode of operation rule and to reconsider our approach to premises liability in self-service commercial establishments where the plaintiff alleges a foreseeable risk of harm. I emphasize that this rule does not presume all self-service operations are inherently dangerous, meaning the plaintiff still carries the burden of proving that the specific self-service operation created a foreseeable risk of injury to customers. The central focus of the analysis should be on whether the design or operation of the self-service area, such as the salad bar, created a foreseeable risk of harm, rather than the duration of the dangerous condition ('time on the floor'). If the plaintiff can demonstrate that the salad bar was poorly designed or operated, leading to a foreseeable risk of spillage and falls, and that her injury resulted from such a condition, then the store owner can be deemed to have actual notice of the defect inherent in its mode of operation. The evidence presented, including the salad bar's lack of railings, narrow ledge, and the manager's admission about the 'precarious' nature of the area due to falling food, sufficiently showed that the salad bar created a dangerous condition of which Stop and Shop had actual notice. This approach aligns with common-law negligence principles, eases the plaintiff's burden regarding 'time-on-the-floor' evidence, and provides consistency for consumers and businesses.
Analysis:
This case represents a significant shift in premises liability law in Connecticut, specifically addressing the challenges of proving negligence in modern self-service retail environments. By adopting the 'mode of operation' rule, the court acknowledges the inherent risks created by such businesses and rebalances the evidentiary burden, recognizing the superior position of store owners to prevent foreseeable hazards. This ruling encourages self-service businesses to implement proactive safety measures and regular maintenance practices to mitigate risks, rather than relying on the difficulty of proving notice. Future cases involving slip-and-fall injuries in similar retail settings will likely focus more on the foreseeability of the dangerous condition based on the business's operational choices, rather than the precise duration of the hazard on the floor.
