Chiara v. Fry's Food Stores of Arizona, Inc., CV-86-0047-PR

• Decision Date: 17 February 1987
• Docket Number: No. CV-86-0047-PR,CV-86-0047-PR
• Citation: 152 Ariz. 398,733 P.2d 283
• Parties: Nancy P. CHIARA and Richard A. Chiara, wife and husband, Plaintiffs-Appellants, v. FRY'S FOOD STORES OF ARIZONA, INC., a California corporation; and Fry's Food Stores, Inc., a California corporation, Defendants-Appellees.
• Court: Arizona Supreme Court

Page 283

733 P.2d 283

152 Ariz. 398

Nancy P. CHIARA and Richard A. Chiara, wife and husband, Plaintiffs-Appellants, v. FRY'S FOOD STORES OF ARIZONA, INC., a California corporation; and Fry's Food Stores, Inc., a California corporation, Defendants-Appellees.

No. CV-86-0047-PR.

Supreme Court of Arizona, In Banc.

Feb. 17, 1987.

John V. Riggs, Ltd. by John V. Riggs, Phoenix, for plaintiffs-appellants.

Holloway & Thomas, P.C. by Benjamin C. Thomas and Randy L. Sassaman, Phoenix, for defendants-appellees.

JACK D.H. HAYS, Justice, Retired.

Plaintiff-appellant, Nancy P. Chiara (Chiara), slipped on some creme rinse in a store owned by defendant-appellee, Fry's Food Stores (Fry's). Neither Chiara nor Fry's employees could explain how the creme rinse fell to the floor nor estimate how long it had remained on the floor. Chiara argued that the "mode-of-operation" rule allowed her to prove negligence without demonstrating that Fry's had either actual or constructive notice of the spilled creme rinse. Nevertheless, the trial court granted pretrial summary judgment in favor of Fry's apparently because Chiara could not demonstrate that Fry's had notice of the spill. Chiara appealed and the court of appeals in a memorandum decision affirmed the trial court's decision (Chiara v. Fry's Food Stores of Arizona, Inc., 1 CA-CIV 7584, filed Dec. 19, 1985). We granted review in order to clarify the scope of the "mode-of-operation" rule. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.Civ.App.P. 23, 17A A.R.S.

We consider two issues:

1) Whether Chiara's allegations are capable of supporting a finding of liability under the "mode-of-operation" rule.

2) Whether traditional rules pertaining to burden of proof in a negligence case are altered under a mode-of-operation analysis.

PROPRIETOR'S DUTY OF CARE

A business proprietor has an affirmative duty to make and keep his premises reasonably safe for customers. Preuss v. Sambo's of Arizona, Inc., 130 Ariz. 288, 289, 635 P.2d 1210, 1211 (1981). However, a proprietor who is not directly responsible for a dangerous condition is not liable simply because an accident occurred on his property. Id.; Walker v. Montgomery Ward & Co., 20 Ariz.App. 255, 258, 511 P.2d 699, 702 (1973). If a third person The proprietor may be liable for a dangerous condition produced by a third party, though, if he had actual or constructive notice of the dangerous condition. Pruess, 130 Ariz. at 289, 635 P.2d at 1211. Traditionally, a plaintiff can demonstrate that a breach occurred by proving that the

[152 Ariz. 400] another customer, produced the dangerous condition, the proprietor could not, without more, be said to have breached his duty to make his premises safe. A customer injured by a dangerous condition of unknown origin, therefore, would have difficulty establishing a breach of the proprietor's duty.

... defendant had actual knowledge or notice of the existence of the foreign substance or dangerous condition, or ... [that] the condition existed for such a length of time that in the exercise of ordinary care the proprietor should have known of it and taken action to remedy it (i.e., constructive notice).

Walker, 20 Ariz.App. at 258, 511 P.2d at 702. The notice requirement, actual or constructive, is only satisfied if the proprietor has notice of the specific dangerous condition itself and not merely if the proprietor has general notice of conditions producing the dangerous condition. Id.; Koepke v. Carter Hawley Hale Stores, Inc., 140 Ariz. 420, 426, 682 P.2d 425, 431 (App.1984). That is, under traditional negligence jurisprudence, a storeowner's liability can not be premised simply upon a plaintiff's proof that a storeowner had notice that a dangerous condition was a possibility.

The notice requirement adds to the substantial hurdles faced by plaintiffs injured by transitory hazardous conditions in a store. See, e.g., Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486, 488 (La.1976) (injured customer has an "onerous evidentiary burden"); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 430, 221 A.2d 513, 515 (1966) ("unjust to saddle the plaintiff with the burden of isolating the precise failure [which produced an injury]"). A person injured in a supermarket fall will rarely be able to trace the origins of the accident. No one in this case, for example, has any idea how the creme rinse fell to the floor.

THE MODE-OF-OPERATION RULE

Courts in Arizona and in other jurisdictions have mitigated this seeming inequity by developing the "mode-of-operation" rule. The "mode-of-operation" rule looks to a business's choice of a particular mode of operation and not events surrounding the plaintiff's accident. Under the rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise. See Bloom v. Fry's Food Stores, 130 Ariz. 447, 636 P.2d 1229 (App.1981); Tom v. S.S. Kresge Co., 130 Ariz. 30, 633 P.2d 439 (App.1981). In other words, a third person's independent negligence is no longer the source of liability, and the plaintiff is freed from the burden of discovering and proving a third person's actions. A plaintiff's proof of a particular mode-of-operation simply substitutes for the traditional elements of a prima facie case--the existence of a dangerous condition and notice of a dangerous condition. This is neither a new nor radical principle. We have recognized, in other contexts, a businessman's duty to anticipate the hazardous acts of others likely to occur on his property, e.g., Chernov v. St. Luke's Hospital Medical Center, 123 Ariz. 521, 522-23, 601 P.2d 284, 285-86 (1979) (hospital not entitled to summary judgment when plaintiff alleged that accident in hospital parking lot was produced by hospital's improper maintenance of traffic control signals); see also Restatement (Second) of Torts § 344 ("A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons ..., and by the failure of the possessor to exercise reasonable care to [protect the public]").

The mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer For this reason, a particular mode of operation only falls within the mode-of-operation rule when a business can reasonably anticipate that hazardous conditions will regularly arise. Cf. Jamison v. Mark C. Bloome Co., 112 Cal.App.3d 570, 169 Cal.Rptr. 399, 401-02 (1980) (business not liable to persons injured on spilled oil because business has no reason to anticipate vandalism of oil drums); Overstreet v. Gibson Product Co., 558 S.W.2d 58, 61 (Tex.Civ.App.1977) (grocery store owner not liable for customer bitten by a rattlesnake). A plaintiff must demonstrate the foreseeability of third-party interference before Arizona courts will dispense with traditional notice requirements. Many of the cases upholding the applicability of the mode-of-operation rule have accordingly involved open food displays. E.g., Bloom v. Fry's Food Stores, Inc., supra (grapes); Tom v. S.S. Kresge Co., supra (soft drinks); Rhodes v. El Rancho Markets, 9 Ariz.App. 576, 454 P.2d...