Konesky v. Post Road Entertainment
144 Conn. App. 128
Conn. App. Ct.2013Background
- Hula’s New Haven, LLC appeals a jury verdict awarding Sandra Konesky damages after a premises liability suit arising from injuries at Hula Hank’s Island Bar during a Walter Camp Football Foundation event on January 11, 2008.
- Plaintiff claimed two theories: a defective step and a hazardous floor/slippery condition, and an inherently hazardous mode of operation related to serving beer from ice-filled tubs.
- Beer tubs were placed around the venue on speaker boxes; servers handed beers to patrons from atop the speaker boxes near the plaintiff’s booth.
- Plaintiff slipped on water near the beer-tub area, sustaining a fractured shoulder and foot, with medical recovery anticipated to eight to twelve weeks.
- The trial court admitted evidence of the mode of operation theory, and the jury was instructed that the defendant could be liable if it created the hazard or if the mode of operation created a zone of risk.
- The appellate court reverses, holding the mode of operation rule was misapplied and that traditional premises liability principles should apply, with no need to reach the mode-of-operation theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the general verdict rule applicable where two theories are pled? | Konesky argues two distinct theories; general verdict cannot resolve which ground supported the verdict. | Hula contends general verdict rule should preserve if any proper ground exists. | General verdict rule not controlling; separate grounds may be improper and reverseable. |
| Did the trial court properly apply the mode of operation rule? | Mode of operation applies when defendant’s operation creates foreseeable hazards; tub method may be inherently hazardous. | Beer service from tubs is not a distinct mode of operation; normal bar operation suffices. | Mode of operation rule was misapplied; not a distinct, inherently hazardous mode here. |
| Does serving beer from ice-filled tubs constitute a valid mode of operation? | Tubs created heightened, foreseeable risk due to uninsulated tubs and elevated servers, increasing water on floor. | Serving cold beer is not inherently hazardous; it is a conventional bar function. | Not a proper mode of operation; risks from wet bottles are not inherently linked to a distinct operation. |
| Should the court have rejected application of the mode of operation rule in light of Fisher v. Big Y Foods, Inc.? | Facts align with mode of operation due to special serving method. | Fisher prohibits broad application to self-service or ordinary bar operations. | Mode of operation rule limited; not applicable to the facts as presented. |
Key Cases Cited
- Curry v. Burns, 225 Conn. 782 (1993) (general verdict rule governs when any ground is proper)
- Tetreault v. Eslick, 271 Conn. 466 (2004) (general verdict rule applies when distinguishing grounds exist)
- Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1 (2013) (premises liability specifications can be amalgamated under general theory)
- Fisher v. Big Y Foods, Inc., 298 Conn. 414 (2010) (limits on mode of operation; not every self-service scenario falls within doctrine)
- Kelly v. Stop & Shop, Inc., 281 Conn. 768 (2007) (mode of operation shifts burden for foreseeable hazards in operation)
- Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398 (1987) ( foresees third-party interference required for mode of operation in some contexts)
- Kearns v. Horsley, 144 N.C. App. 200 (2001) (theatre darkening not a mode of operation; assume risk unless notice shown)
- Fisher v. Big Y Foods, Inc., 298 Conn. 414 (2010) (supermarket mode of operation rules limited; self-service not automatically negligent)