LEGAL UPDATE
FEATURING COMMENTS ON IMPORTANT LEGAL DEVELOPMENTS
Connecticut Supreme Court adopts "mode of operation" rule in premises liability cases
In Kelly, et al. v. Stop and Shop, Inc. --- A.2d ----, 2007 WL 879839, Conn. (No. 17404.), which was officially released on April 3, 2007, the Connecticut Supreme Court adopted the "mode of operation" rule. Under this premises liability rule, "a business invitee who is injured by a dangerous condition may recover without proof that the business had actual or constructive notice if that condition if the business' chosen mode of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it." With the adoption of this rule, premises liability law in this State has changed immeasurably.1
In Kelly, the plaintiff commenced suit against Stop and Shop, Inc. for injuries sustained when, due to the defendant's alleged negligence, she slipped and fell on a piece of lettuce that had fallen to the floor from a self-service salad bar of a Stop and Shop supermarket. After a bench trial, the trial court directed verdict in favor of Stop and Shop because the plaintiff had failed to meet her burden of establishing that the defendant had actual and constructive notice of the piece of lettuce, a decision which was based on century old legal principals.
The plaintiff thereafter appealed, claiming that the trial court had improperly declined to consider her claim of liability under the "mode of operation rule." The plaintiff claimed that proof of notice was not required because the evidence established that the salad bar was operated in such a manner that it was foreseeable that other customers would spill or drop food from the salad bar to the floor below, thereby creating a dangerous condition. In other words, the plaintiff claimed that Stop and Shop's method of operating its salad bar was negligent.
The plaintiff in Kelly was not arguing that a Stop and Shop employee had created the dangerous condition. If that were the claim, this case would not be nearly as noteworthy. Connecticut courts have long recognized that when a storeowner creates a dangerous condition, proof of notice is not required because courts can safely infer that by creating the condition, the storeowner had knowledge of the condition2 What made Kelly's claim significant, and what makes this case so important, is that Kelly was claiming that Stop and Shop should be held liable for a condition created by a third party of which the store did not have notice of.
For litigators, in burden of production terms, the Connecticut Supreme Court's adoption of the rule means that a plaintiff can establish a prima facie case of negligence absent a showing of notice, "upon presentation of evidence that the mode of operation of the defendant's business gives rise to a foreseeable risk of injury to customers and that the plaintiff's injury was proximately caused by an accident within the zone of risk." Thereafter, the defendant "may rebut the plaintiff's evidence by producing evidence that it exercised reasonable care under the circumstances." Ultimately, the finder of fact bears the ultimate responsibility of determining whether the defendant exercised such care.3
At first glance, the Court's holding appears to be limited to "self-service" businesses. Zealous defense advocates are surely, and likely, to hang their collective hats on that phrase, "self-service" business. Upon closer examination, however, the apparent limitation may not be much of a limitation at all. The Kelly court, in rejecting decade old law requiring proof of notice, suggests that the law is a relic of a bygone time, harkening back, perhaps unrealistically, to a time of "individual clerk assistance." That time, if it ever existed, is long gone. Indeed, it is difficult to identify any merchant, be it a grocer, a clothier, or a fast food proprietor, which, in today's world, does not rely to some extent or another on "self-service."
Moreover, in setting forth its basis for adopting the mode of operation rule, the Connecticut Supreme Court relied upon reasoning that appears generally applicable to all store owners. The Court noted that "the requirements of actual or constructive notice places a difficult-and frequently insuperable-burden on injured customers to establish when unsafe conditions arose." The Court declared that the notice requirements of the past provide self-service enterprises with little incentive to adopt policies designed to prevent injuries because actual or constructive notice is "frequently is so difficult to prove." Such general propositions represent a certain departure from reasoning Connecticut Courts have traditionally employed when requiring plaintiffs to plead and prove actual or constructive notice, and suggest that the reach of the Kelly decision is likely to extend to all premises liability cases.
From this point on, a well plead premises liability case will always include "mode of operation" allegations, in anticipation that the trial judge will issue a charge to the jury based on the Kelly decision. The Kelly Court anticipated as much. By way of a footnote, the Court stated that the mode of operation rule "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 pending cases, the trial court shall have discretion "to bar invocation of the rule if there is an overriding reason to do so." The Court noted that the trial court may consider any delay that may be occasioned by allowing the plaintiff to raise this type of a claim due to the need for additional discovery, the length of time the case has been pending and its proximity to trial.
In evaluating the impact of the Kelly decision, it is important to understand that the "mode of operation rule" does not impose strict liability on Connecticut storeowners. Storeowners can take steps to avoid liability. In Kelly, the court found, with significance, that although Stop and Shop had relevant policies and procedure, it failed to produce any evidence that it followed said polices and procedures thereby permitting an inference that Stop and Shop did not follow its own policies and procedures on the day in question. As a result, "a fact finder reasonably could have concluded that the plaintiff had slipped and fallen due to the defendant's failure to take adequate precautions in connection with its operation of the salad bar." This reasoning suggests that a shopkeeper's best defense is that (1) it had specific policies and procedure in place to avoid the accident in its store and that (2) it has documentation establishing that it followed those policies and procedure.
The landscape has significantly changed in Connecticut for premises liability cases. As a result of the Kelly decision, the chance of a plaintiff's verdict is much greater since a plaintiff will no longer bear the "insuperable burden" of proving actual or constructive notice. For the defense, the burden has increased and without evidence that it exercised reasonable care under the circumstances, the chance of a defense verdict will be unlikely. Most importantly, while defense counsel and insurance adjusters need to be aware of this recent change in the law, it is the retailer that needs to evaluate, and if need be implement, policies, procedures and record keeping practices in order to demonstrate that reasonable safety precautions are being taken in the operation of every aspect of its business.
Dana B. Lee, Esq.
dlee@gmflaw.com
April 9, 2007
1. On appeal, the defendant contended that "the mode of operation rule effectively makes self service businesses strictly liable for injuries to their customers". The Court rejected this argument and noted that under this rule the defendant "is free to adduce evidence...that it undertook reasonable measures to avoid accidents like the accident that resulted in the plaintiff's injury."
2. See e.g., Clennon v. Hometown Buffet, Inc., 84 Conn.App. 182, 186, 852 A.2d 836 (2004)(Holding that proof of notice was not required where evidence showed that restaurant employee had allowed the area around desert bar to remain wet from the mopping).
3. Connecticut is joining at least twenty of its sister states that have already adopted this rule or some variation of it.
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