281 Conn. 768 | Conn. | 2007
Lead Opinion
Opinion
The principal issue raised by this appeal is whether this court should adopt the so-called “mode of operation” rule, a rule of premises liability pursuant to which a business invitee who is injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition if the business’ chosen mode of operation creates a foreseeable risk that the condition regu
The following evidence was adduced at trial. At approximately 11:30 a.m., on November 2, 1999, the plaintiff arrived at the defendant’s supermarket in Fair-field to purchase groceries and to make herself a salad for lunch. Upon entering the store, she secured a shopping cart and went directly to the self-service salad bar located near the produce and floral departments of the store. The salad bar was surrounded on both sides by a narrow floor runner, approximately two to three feet wide, on which patrons stood while they served themselves. The floor itself was made of tile or linoleum. The salad bar had no railings and was framed by a four
While the plaintiff was lying on the floor following her fall, she observed a store employee, subsequently identified as Cecilia Stacey Bombero, cleaning the cottage cheese and fruit from around the plaintiffs feet. Another person helped the plaintiff up and then went to locate the store manager. While waiting for the manager to arrive, the plaintiff wiped off her shoes with a rag that she had obtained from Bombero. At that time, the plaintiff noticed “a wet, slimy piece of green lettuce” on the side of her shoe that, according to the plaintiff, had caused her to fall. The plaintiff, however, did not see any food or other substance on the floor near the salad bar before the accident.
The store manager, Nicholas J. Bishighini, arrived and asked the plaintiff if she was alright. The plaintiff responded that her shoulder hurt. Bishighini offered to
According to Bishighini, the defendant’s store policy called for at least one salad bar attendant to be on duty at all times. That attendant’s job responsibilities included filling and maintaining the salad bar, and cleaning and patrolling the salad bar area. Typically, whenever the salad bar attendant took a break, another employee was assigned to cover the area until the attendant returned. Bishighini characterized the salad bar as “an area where people used to let . . . salads fall. It was precarious.” As a consequence, Bishighini stated, “special porters” generally were stationed near the area of the salad bar.
Bishighini further explained that the defendant’s store policy also required that a special report form be completed after any accident. The instructions on the front of the form provide in relevant part: “Answer all questions accurately, both sides. Have the employees fill out the reverse [side] independent of each other. Remember to sign and print your name on the bottom of this report. The maintenance report on the reverse side is to be filled out by the employee who last swept, cleaned and inspected [the area where the accident
Notwithstanding these requirements, the accident report that was completed in connection with the plaintiffs fall was dated November 29, 1999, almost one month after the accident. Furthermore, the report contained no photographs or sweeping logs. The report did note, however, that the plaintiff had slipped “on [a] green [piece] of lettuce . . . .”
The following additional facts and procedural history are relevant to our resolution of this appeal. In her complaint, the plaintiff alleged, inter alia, that the defen
At the conclusion of the trial, the plaintiff urged the court to apply the mode of operation rule. Specifically, the plaintiff maintained that the evidence established that the salad bar was operated in such a manner that it was foreseeable that customers would spill or drop food from the salad bar to the floor below, thereby creating a dangerous condition. The plaintiff further claimed that, although it was the defendant’s policy to inspect and clean the salad bar area routinely, the evidence indicated that the defendant failed to follow that policy. The plaintiff asserted, in particular, that the defendant’s failure to provide sweeping logs and photographs with the accident report, as specifically required in the instructions accompanying the accident report form, gave rise to an inference that the floor surrounding the salad bar had not been swept or inspected in accordance with store policy.
In its memorandum of decision, the trial court concluded, in accordance with then controlling case law, that, because the plaintiff was a business invitee, she was required to prove that the defendant had actual or constructive notice of the piece of lettuce that allegedly had caused the plaintiffs fall. In view of the fact that the plaintiffs complaint did not allege that the defendant had actual notice of the piece of lettuce, the trial court focused exclusively on whether the plaintiff had established that the defendant had constructive notice of the condition. The trial court noted that, to establish
On appeal, the plaintiff does not challenge the trial court’s finding that the evidence was insufficient to establish the defendant’s constructive notice of the piece of lettuce on which she allegedly had slipped. Rather, she challenges the court’s determination that she was required to prove that the piece of lettuce had been on the floor long enough to charge the defendant with constructive notice of its presence there. Specifically, the plaintiff maintains that the trial court improperly declined to consider her claim under the mode of operation rule, which allows a business invitee to recover for an injury sustained as a result of a dangerous condition on the premises of a business without a showing that the business had actual or constructive notice of that condition, if the condition was reasonably foreseeable and the business failed to take reasonable measures to discover and remove it. The plaintiff further contends that the evidence adduced at trial was sufficient to support a finding in her favor under that rule. We conclude that we should adopt the mode of operation rule and agree with the plaintiff that she adduced sufficient evidence at trial to support a finding in her favor under that rule.
It is undisputed that the owner of a retail store has a duty to keep the premises in a reasonably safe condition for the benefit of its customers. See, e.g., Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002). Recently, we reiterated the legal standard that this court ordinarily has applied to premises liability claims brought by business invitees: “Typically, [f]or [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it. . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. . . . In the absence of allegations and proof of any facts that would give rise to an enhanced duty ... [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.” (Citations omitted; internal quotation marks omitted.) Id.
The mode of operation rule, however, which the plaintiff urges us to adopt, “allows a customer injured due to a condition inherent in the way [a] store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition.” Jackson v. K-Mart Corp., 251 Kan. 700, 702,
Thus, “modern-day supermarkets, self-service marts, cafeterias, fast-food restaurants and other business premises should be aware of the potentially hazardous conditions that arise from the way in which they conduct their business. Indeed, the very operation of many of these types of establishments requires that the customers select merchandise directly from the store’s displays, which are arranged to invite customers to focus on the displays and not on the floors. ... In each of these cases, the nature of the defendant’s business gives rise to a substantial risk of injury to customers from slip-and-fall accidents . . . .” Owens v. Publix Super
The Vermont Supreme Court recently summarized the genesis and rationale of the mode of operation rule. “With the advent of self-service marketing operations in retail stores . . . courts across the country . . . began to modify premises liability law in various ways to reduce or eliminate [a plaintiffs] burden of proving that the store had actual or constructive notice of the defective condition. See Jackson v. K-Mart Corp., [supra, 251 Kan. 705-10] (noting broad trend toward modifying premises liability law in retail establishments and discussing various ways in which traditional rule has been altered); see also Owens v. Publix Supermarkets, Inc., [supra, 802 So. 2d 324-29] . . . (noting modem jurisprudential trend of departing from the traditional rule of premises liability when a plaintiff slips and falls on a transitory foreign substance, and discussing various approaches taken by different courts); Cobb v. Skaggs Cos., [661 P.2d 73, 76 (Okla. App. 1982)] (noting that self-service marketing method has spawned a growing trend of cases that dispense with the traditional notice requirement in such business settings as discount department stores, restaurants, and supermarkets) .... In modifying the traditional mle, these courts reasoned that while self-service operations give store customers additional freedom to browse and select the merchandise they desire, they also pose fore
Consistent with the observation of the Vermont Supreme Court, some courts that have adopted the mode of operation rule have concluded that the owner of a self-service retail establishment reasonably may be deemed to have constructive notice of dangerous, transitory conditions that are likely to occur due to the manner in which the store is operated. See, e.g., Blair v. West Town Mall, 130 S.W.3d 761, 766 (Tenn. 2004) (“This approach focuses directly on a principle firmly established in [the] case law — that a premises owner’s duty to remedy a condition, not directly created by the owner, is based on that owner’s actual or constructive knowledge of the existence of the condition. It simply recognizes the logical conclusion that, when a dangerous condition occurs regularly, the premises owner is on constructive notice of the condition’s existence. This places a duty on that owner to take reasonable steps to remedy this commonly occurring dangerous condition.”); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 57-58, 150 N.W.2d 361 (1967) (“in circumstances [in which] there is a reasonable probability that an unsafe condition will occur because of the nature of the business and the manner in which it is conducted, then constructive knowledge of the existence of such an unsafe condition may be charged to the operator and such constructive notice does not depend [on] proof of an extended period of time within which a shop owner might have received knowledge of the condition in
Although this court previously has not had occasion to consider the mode of operation rule, at least twenty-
Indeed, in Meek v. Wal-Mart Stores, Inc., supra, 72 Conn. App. 476-79, the Appellate Court recently employed a mode of operation analysis in the context of a claim arising out of the alleged negligence of a large, self-service department store. In Meek, the named plaintiff, Jeffrey Meek, was injured when two boxes containing aluminum folding camp tables fell on him while he was shopping at a Wal-Mart store in Waterford. Id., 469. Meek brought an action against Wal-Mart Stores, Inc. (Wal-Mart), and certain of its employees, claiming, inter alia, that Wal-Mart or its employees negligently had failed to secure the tables to the shelf on which they were displayed. Id., 470-71. A jury returned a verdict in favor of Meek, and Wal-Mart appealed. Id., 471-72. On appeal, Wal-Mart argued that the evidence was inadequate to establish that the manner in which the tables had been stacked for display constituted a dangerous condition. Id., 473. In particular, Wal-Mart maintained that it could not be held responsible for the accident because the evidence indicated that another customer had caused the tables to be moved into a position in which they were vulnerable to toppling. Id.
The Appellate Court rejected this claim, concluding that the evidence was sufficient to permit a finding that Wal-Mart and its employees had been negligent in stacking the boxes in the manner they did because it was foreseeable that the boxes could be dislodged by customers with only minimal inspection or handling. Id., 479. In reaching its conclusion, the Appellate Court noted, first, that when a business invitee alleges that her injuries were caused by an unsafe condition created
“Injuries also may result indirectly from a proprietor’s defective or negligent display of merchandise that nonetheless are wholly to be expected from the store’s mode of operation and may be taken into account by the fact finder when it considers whether the method of display was unsafe. Thus, one of the factors to be considered in establishing and maintaining a display in a department store is that the merchandise is going to be inspected by the customers. A merchandise display constructed so that an inspection by a customer, in a foreseeable and reasonable manner, causes the merchandise to fall, is a negligently constructed display. . . .
“The concept is no less applicable [when] it is the foreseeable action of another customer who rendered the display dangerous to the injured plaintiff.” (Citations omitted; internal quotation marks omitted.) Id., 476-77. In other words, “there is no logical distinction between a situation in which the storeoumer directly creates the condition or defect, and where the storeowner’s method of operation creates a situation [in which] it is reasonably foreseeable that the expectable acts of third parties will create a dangerous condition or defect.” (Emphasis added.) Id., 478.
Second, the essential premise of the rule requiring a business invitee to prove actual or constructive notice of the unsafe condition is incompatible with the self-service method of operation. Actual or constructive
Third, the requirement of actual or constructive notice places a difficult, — and frequently insuperable— burden on injured customers to establish when the unsafe condition arose. “An injured customer is often at a decided disadvantage in determining what has happened. The fall victim may be dazed, helpless and friendless, unable to interview bystanders or to observe the scene carefully. The store [on the other hand] is able to make an immediate investigation, interviewing witnesses and diagramming the scene. Relative availability of evidence to the parties is a circumstance to be considered in determining what should be required for making asubmissible case.” Sheil v. T.G. & Y. Stores Co., supra, 781 S.W.2d 782; see also Owens v. Publix Supermarkets, Inc., supra, 802 So. 2d 330 (“premises owners are in a superior position to establish that they did or did not regularly maintain the premises in a safe condition and they are generally in a superior position to ascertain what occurred by making an immediate investigation, interviewing witnesses and taking photographs”); Wollerman v. Grand Union Stores, Inc., supra, 47 N.J. 430 (“[When] a substantial risk of injury is implicit in the manner in which a business is conducted, and ... it is fairly probable that the operator is responsible either [for] creating the hazard or permitting it to arise or to continue, it would be unjust to saddle [a] plaintiff with the burden of isolating the precise failure. The situation being peculiarly in the defendant’s hands, it is fair to call [on] the defendant to explain, if he wishes to avoid an inference by the trier of the facts that the fault
Finally, the mode of operation rule is most consistent with “the general rule that every person has a duty to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct, whether that conduct consists of acts of commission or omission.”
The defendant contends that the mode of operation rule effectively makes self-service businesses strictly liable for injuries to their customers. We disagree with this assertion. On the contrary, “it must be emphasized that ‘a store owner is not an insurer of its customers’ safety. Certainly, [when] ... a customer is injured by an independent act of negligence which the merchant cannot reasonably be expected to foresee or guard against, the merchant is not hable. However, ordinary and foreseeable activities of patrons, not amounting to independent acts of negligence, should not result in injury to fellow patrons or themselves; and a merchant is negligent if he has so arranged his merchandise that such activities can cause merchandise to fall resulting in injury.’ ”
To summarize, a plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of operation of the defendant’s business gives rise to a foreseeable risk of injuiy to customers and that the plaintiffs injury was proximately caused by an accident within the zone of risk. The defendant may rebut the plaintiffs evidence by producing evidence that it exercised reasonable care under the circumstances. Of course, the finder of fact bears the ultimate responsibility of determining whether the defendant exercised such care. We underscore, “as most other courts have, that the defendant’s burden in such cases is one of production, and that the ultimate burden of persuasion to prove negligence — in other words, that
Thus, the plaintiff always bears the burden of establishing negligence under the mode of operation rule. In other words, although the plaintiff will make out aprima facie case upon the presentation of evidence from which the fact finder reasonably could find that the defendant’s self-service mode of operation gave rise to a foreseeable risk of injury to customers and that the plaintiffs injury was proximately caused by an accident within the zone of risk, the fact finder is not obliged to conclude that the defendant was negligent. Rather, the fact finder is free to find either that the plaintiffs evidence is sufficient to establish negligence by the defendant or that the plaintiffs evidence is insufficient to establish negligence. If the fact finder were to find that the plaintiffs evidence was sufficient to establish negligence, and the defendant presented no evidence, then the fact finder presumably would find in favor of the plaintiff. The defendant, however, is free to adduce evidence, in response to the plaintiffs evidence, that it undertook reasonable measures to avoid accidents like
Applying the foregoing rule to the present case, we conclude that the plaintiff adduced evidence sufficient to establish a prima facie case of negligence by the defendant. Specifically, Bishighini, the store manager, testified that the area around the salad bar was “precarious” because customers regularly caused items from the salad bar to fall to the floor below. Indeed, because the defendant knew of the dangers associated with maintaining a self-service salad bar, the defendant had a policy of stationing an attendant at the salad bar for the purpose of keeping the area clean and safe. Moreover, the plaintiff testified that she fell when she slipped on a “wet, slimy piece of . . . lettuce” while she was making a salad at the salad bar. This evidence was adequate to permit a finding that the salad bar created a foreseeable risk of danger to customers; see Nisivoccia v. Glass Gardens, Inc., supra, 175 N.J. 565 (“A location within a store where a customer handles loose items during the process of selection and bagging from an open display obviously is a self-service area. A mode-of-operation charge is appropriate when loose items that are reasonably likely to fall to the ground during customer or employee handling would create a dangerous condition.”); and that the plaintiffs fall had resulted from that dangerous condition. Furthermore, although the defendant’s policy required both that a maintenance report be completed by the employee who had “last swept, cleaned and inspected” the area where the accident occurred and that all relevant photographs and sweeping logs be appended to the accident report, the defendant failed to comply with those directives. The plaintiff correctly asserts that the defendant’s
The judgment is reversed and the case is remanded for a new trial.
In this opinion NORCOTT, KATZ, VERTEFEUILLE and DiPENTIMA, Js., concurred.
Lany Kelly, the named plaintiff s spouse, also was aplaintiff. He withdrew from the action, leaving the named plaintiff as the sole remaining plaintiff. In the interest of simplicity, we refer to Maureen Kelly as the plaintiff throughout this opinion.
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
In a written statement dated February 29, 2000, Bombero indicated that she had been at the salad bar on her lunch break at the time of the accident and had witnessed the plaintiffs fall. Bombero further stated that the plaintiff appeared to have fallen for no reason and that, as far as she could tell, there was nothing on the floor in the area where the plaintiff had been standing that would have caused her to fall.
Although the plaintiff, a dental hygienist, could undergo surgery to repair her rotator cuff, she has declined that option because, inter alia, she cannot afford to be out of work for the protracted period of recuperation that would be necessary following such surgery.
Meek demons!rates the close relationship between a defendant’s affirmative act of negligence, which obviates the need for a business invitee to establish that the defendant had actual or constructive notice of a dangerous condition on the premises, and a defendant’s liability to a business invitee under the mode of operation rule, pursuant to which notice of the dangerous condition also is unnecessary. With respect to the former, proof of notice is not required because the defendant is presumed to be on notice of the conduct of its own employees; with respect to the lafier, proof of notice is unnecessary because the defendant is presumed to be on notice of the foreseeable conduct of its customers in view of its manner of operation. Thus, in both cases, notice is not required because the defendant reasonably may be deemed to have created the unsafe condition, either directly, as in the case of an affirmative act of negligence, or indirectly, as in the case of foreseeable conduct by a customer acting in accordance with the proprietor’s self-service method of operation.
As the Restatement (Second) of Torts provides, “[a] possessor of land who holds it open to the public is under a duty to members of the public who enter in response to his invitation.” 2 Restatement (Second), Torts § 314A (3), p. 118 (1965). The duty “arise[s] out of special relations between the parties, which create a special responsibility . . . .” Id., § 314A, comment (b), p. 119. This “duty to protect the other against unreasonable risk of harm extends to risks arising . . . from the acts of third persons, whether they be innocent, negligent, intentional, or even criminal.” Id., comment (d).
We recognize that the mode of operation rule has been criticized because, under the rule, a defendant potentially may be held liable for the plaintiffs injuries even though the defendant’s negligence was not the cause of those injuries. Indeed, one court recently has stated that, “[d]oing away with the requirement that the invitee must prove how long the dangerous condition existed pre-injury is the functional equivalent of doing away with the requirement that the plaintiff prove that the defendant’s negligence was the proximate cause of the plaintiffs injury. . . . Without‘time on the floor’evidence, the storekeeper would be potentially liable even though there is no way of telling whether there was anything [the storekeeper] could have done that would have avoided the injury.” Maans v. Giant of Maryland, LLC, supra, 161 Md. App. 640. We acknowledge that this criticism of the rule has some validity. Therefore, if a storekeeper can establish to the satisfaction of the fact finder that its negligence was not a cause in fact of the accident — for example, in the present case, if the defendant can demonstrate that the piece of lettuce on which the plaintiff allegedly slipped had fallen to the floor only moments before the plaintiffs accident — we see no reason why the storekeeper should be held liable notwithstanding proof that the storekeeper had failed to take appropriate measures to prevent such accidents generally. We also conclude, however, that a defendant who fails to take reasonable precautions to avoid dangers likely to arise from its self-service method of operation should bear the burden of demonstrating that its failure to take such precautions was not a proximate cause of any injuries resulting from those foreseeable dangers.
The mode of operation rule that we adopt today shall be applied to all future cases and, as a general rule, to all previously filed cases in which the trial has not yet commenced as of the date of the release of this opinion. With respect to the latter category of cases, the trial court shall have discretion to bar invocation of the rule if there is an overriding reason to do so. In determining whether such a reason exists, the court may consider, among other things, any delay in the trial of the case that may be occasioned by allowing the plaintiff to raise a claim under the mode of operation rule (for purposes of additional discovery or otherwise), the length of time that the case has been pending and its proximity to trial.
Concurrence Opinion
with whom McLACHLAN, J., joins, concurring. I agree with the result reached by the majority. I also agree with the majority that this court should reconsider its approach to premises liability law in cases involving self-service commercial establishments in which the plaintiff alleges that the mode of operation created a foreseeable risk of harm.
Applying the mode of operation rule in the present case, I emphasize that the focus of the analysis is not on how long the piece of lettuce was on the floor but on whether the design or operation of the salad bar created a foreseeable risk of harm, thus retaining the causal link between the actions of the premises owner in designing and operating the self-service facility and the injured invitee. If the plaintiff can prove that the salad bar operated by the defendant was designed, constructed or maintained in such a way as to give rise to
The evidence required to prove that a particular mode of operation gave rise to a foreseeable risk of injury should be readily available to an injured party and, in this case, such evidence was adduced at trial. Specifically, the evidence established that the salad bar had no railings and that the four inch ledge was too narrow to accommodate trays or containers, thus requiring customers to hold their containers over the floor while serving themselves. The salad bar itself was located in the middle of a linoleum or tile floor and was surrounded on both sides by a narrow floor runner, approximately two to three feet wide. Furthermore, the store manager testified that the floor area surrounding the salad bar was “precarious” because customers regularly caused items from the salad bar to fall to the floor. In these circumstances, a fact finder reasonably could have concluded that, because the contents of the defendant’s salad bar regularly fell to the floor as a result of poor construction, the salad bar created a dangerous condition of which the defendant had actual notice.
The rule that the majority announces results in a mode of operation analysis that is consistent with principles of common-law negligence. In allowing a plaintiff to prove that the hazardous condition that caused her
I do not agree, however, with one of the majority’s principal reasons for its reconsideration. The majority states that, “because self-service businesses are likely to achieve savings by virtue of their method of operation, it is appropriate to hold them responsible for injuries to customers that are a foreseeable consequence of their use of that merchandising approach unless they take reasonable precautions to prevent such injuries.” This rationale assumes that any savings realized by the owner of a self-service
Because self-service retail operations have graced this country for almost one century; see E. Halper, “Supermarket Use and Exclusive Clauses,” 30 HofstraL. Rev. 297,386 (2001) (“[t]he seeds of the shift from service-oriented grocery sales to self-service groceries were planted when Clarence Saunders opened the first Piggly Wiggly store ... in Memphis ... for business in 1916”); and this state since at least prior to World War II; see, e.g., Nocera v. Great Atlantic & Pacific Tea Co., 15 Conn. Sup. 174, 174 (1947) (describing defendant’s “self-service store” at which “[p]ackaged articles are displayed on shelves and customers take what they want from the shelves and take them to the cashier, who collects the purchase price and delivers the articles purchased to the customer”); Bernhard v. Great Atlantic & Pacific Tea Co., 10 Conn. Sup. 9, 10 (1941) (action for implied warranties of fitness and merchantable quality arising from purchase of corn at defendant’s “self-service store”); Alfonso v. Stavnitsky, 8 Conn. Sup. 34, 37 (1940) (discussing “self-service chain store”); consumers are familiar with all aspects of this type of operation, including the generalized risks associated with using such a facility. Therefore, any new rule that this court adopts should not automatically include all self-service operations but only those that are improperly designed or operated.