Kelly v. Stop & Shop, Inc.

Supreme Court of Connecticut · 2007 · Torts

TortsPremises liabilityNegligencebusiness inviteeself-service storesalad barslip and fallactual notice

Facts

The plaintiff entered the defendant's supermarket to buy groceries and make a salad from a self-service salad bar. As she stepped off a narrow floor runner near the bar, she slipped, fell, and later observed a wet, slimy piece of green lettuce on her shoe, which she claimed caused the fall. The store manager testified that the salad bar area was "precarious" because customers regularly let salad fall, and store policy called for attendants or special porters to maintain the area. Although store policy also required maintenance documentation, photographs, and sweeping logs after accidents, the accident report was prepared nearly a month later and did not include those materials.

Issue

Should Connecticut adopt the mode of operation rule, under which a business invitee injured by a dangerous condition in a self-service business may recover without proving actual or constructive notice of the specific condition? If so, did the plaintiff present sufficient evidence to require consideration of her claim under that rule?

Rule

A plaintiff establishes a prima facie case of negligence under the mode of operation rule by presenting evidence that the defendant's mode of operation gives rise to a foreseeable risk of injury to customers and that the plaintiff's injury was proximately caused by an accident within that zone of risk. The defendant may rebut that showing by producing evidence that it exercised reasonable care under the circumstances, but the ultimate burden of persuasion on negligence remains with the plaintiff.

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In Hartford, Lena Ortiz entered a self-service frozen yogurt shop operated by Harbor Square Foods, LLC. Customers dispensed toppings from open bins into cups they held over a tile floor, and the store manager had repeatedly instructed staff to watch the topping station because sprinkles and fruit frequently landed on the floor there. Lena slipped beside the topping station on crushed pineapple and fractured her wrist, but she could not show how long the pineapple had been there.

If Lena sues for negligence, which argument most strongly supports allowing her claim to reach the fact finder without proof of actual or constructive notice of the pineapple?

Explanation. Under the mode of operation rule, a plaintiff makes a prima facie case by producing evidence that the defendant’s mode of operation gives rise to a foreseeable risk of injury and that the plaintiff’s accident occurred within that zone of risk. In a self-service food area where customers handle loose items over the floor and spills regularly occur, the plaintiff need not prove notice of the specific item. The rule does not impose strict liability, and it does not apply merely because the defendant is a retailer. (Derived from Kelly v. Stop & Shop, Inc. (n.d.).)