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High Court Clarifies Landmark 'Mode of Operation' Rule

In the landmark decision Kelly v. Stop & Shop, 281 Conn. 768 (2007), the Supreme Court adopted the "mode of operation" rule, an exception to the traditional premises liability doctrine, which dispenses with the requirement that a plaintiff prove that a business had actual or constructive notice of the specific unsafe condition giving rise to the plaintiff's injury. Pursuant to the rule, 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 injury to customers and that the plaintiff's injury was proximately caused by an accident within the zone of risk. In Fisher v. Big Y Foods, Inc., 298 Conn. 414 (2010), the high court was faced with deciding what facts and circumstances give rise to a plaintiff's right to recover under this rule.

In Fisher, the plaintiff slipped and fell in a grocery store. The cause of plaintiff's fall was a puddle of what appeared to be fruit cocktail juice on the floor of the aisle where this food was sold. The plaintiff proceeded to trial only under the mode of operation theory. The trial court (McWeeny, J.) charged the jury in accordance with the standard jury instructions designed to reflect this rule. Specifically, the court charged the jury as follows: "The plaintiff has alleged that his injuries were caused by the mode by which the defendant operated the business, in particular, by the way the defendant designed, constructed or maintained its self-service supermarket." In other words, the trial court held that the mode of operation rule "was generally available for premises liability claims in self-service stores." According to the trial court, the mode of operation charge was appropriate because the jury could reasonably conclude that the spilled liquid on which the plaintiff fell was spilled from a food container and dropped to the floor, as a result of the self-service nature of the defendant's operation.

The Supreme Court in Fisher clarified that the mode of operation rule, as adopted in Connecticut, does not apply generally to all accidents caused by transitory hazards in self-service retail establishments, but rather, only to those accidents that result from particular hazards that occur regularly, or are inherently foreseeable, due to some specific method of operation employed on the premises.

Typically, under traditional premises liability doctrine, for 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. The notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of the 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.