Fisher Iii v. Big Y Foods Inc.

• Decision Date: 21 September 2010
• Docket Number: No. 18406.,18406.
• Citation: 3 A.3d 919,298 Conn. 414
• Court: Connecticut Supreme Court
• Parties: Leo A. FISHER III v. BIG Y FOODS, INC.

298 Conn. 414

3 A.3d 919

Leo A. FISHER III

v.BIG Y FOODS, INC.

No. 18406.

Supreme Court of Connecticut.

Argued Jan. 5, 2010.

Decided Sept. 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Sandra Rachel Stanfield, with whom, on the brief, was David A. Estabrook, Hartford, for the appellant (defendant).

Mark J. Migliaccio, for the appellee (plaintiff).

Jack G. Steigelfest, Hartford, and Claudia Baio, Rocky Hill, filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

James G. Geanuracos, West Hartford, filed a brief for the Stop and Shop Supermarket Company, LLC, as amicus curiae.

ROGERS, C.J., and PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js. ^*

ROGERS, C.J.

This appeal requires us to decide what facts and circumstances give rise to a plaintiff's right to recover under 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 owner had actual or constructive notice of the specific unsafe condition giving rise to the plaintiff's injury. The defendant, Big Y Foods, Inc., appeals from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff, Leo A. Fisher III, for injuries he sustained when he slipped and fell in a supermarket owned and operated by the defendant. ¹ The defendant claims that the trial court improperly: (1) construed and applied Connecticut law on the mode of operation rule; (2) denied the defendant's motions for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict on the basis of its misconstruction of the law; and (3) confused the jury by instructing it on traditional premises liability principles because the plaintiff had abandoned any claim pursuant to those principles. We agree with the defendant's first two claims ² and, accordingly, reverse the judgment of the trial court. ³

The following facts, which are not materially disputed, are relevant to the present appeal. On July 24, 2005, the plaintiff was shopping at the defendant's East Windsor supermarket. As he walked down aisle seven toward the front of the store, looking for an item on the shelving, he slipped and fell on a puddle of liquid, injuring his knee and shoulder. The plaintiff described the puddle as being about one and one-half feet in diameter, and the liquid as clear and syrupy. There was no broken container near the puddle and the source of the liquid was not apparent, ⁴ but the plaintiff believed it was fruit cocktail syrup because the liquid contained colored particles and canned fruit was stocked in aisle seven. ⁵ At the time of the plaintiff's fall, the puddle of liquid appeared undisturbed, without footprints or shopping cart track marks running through it. ⁶

The defendant employs porters whose duties include sweeping the floor with dry mops four times throughout the day, beginning at 10 a.m., 1 p.m., 4 p.m. and 7 p.m. A videotape admitted into evidence at trial showed that, seven minutes prior to the plaintiff's fall, porter John Kelley had passed through aisle seven during the course of the 4 p.m. sweep, and a sweep log confirmed that the sweep had been performed. ⁷ Kelley testified that he saw no spill at that time. Pursuant to the defendant's policy, porters are required to inspect each aisle as it is swept. The defendant's policy generally is to “inspect the store all the time.”

The defendant operates its grocery stores in standard modern fashion. The East Windsor store is large, about the size of a football field. Customers are permitted to roam freely about the premises, remove items from the shelves and place them into their carts or return them to the shelves. The store's aisles have shelving on both sides and signs hanging overhead that alert customers to the location of various products. Michael Messer, a store supervisor, agreed at trial that, “[m]ore or less, Big Y is a self-service type store.”

He confirmed that, at times, customers cause spills or messes as a result of mishandling items. ⁸ Messer testified, however, that spills similar to the one at issue were uncommon and that he would not expect the fruit products in aisle seven to break open if dropped. He acknowledged that a glass jar could break, but disagreed that it was foreseeable that a can or plastic cup could fall off a shelf and make a mess. No evidence was presented to the contrary.

On September 26, 2005, the plaintiff commenced this negligence action against the defendant. The operative complaint sounded in traditional premises liability ⁹ and sought monetary damages. By the commencement of trial, however, this court had issued its decision in Kelly v. Stop & Shop, Inc., 281 Conn. 768, 791-92, 918 A.2d 249 (2007), recognizing for the first time the “mode of operation” rule, which provides an exception to the notice requirement of traditional premises liability doctrine. ¹⁰ Relying on Kelly, the plaintiff abandoned his original theory of the case and proceeded solely on a mode of operation theory. ¹¹

At the close of the plaintiff's case, the defendant moved for a directed verdict. The defendant argued that the plaintiff had failed to present any evidence of the cause or origin of the spill, or that spills of that liquid were a regularly occurring hazardous condition. According to the defendant, the plaintiff could not make out a prima facie case under the mode of operation rule simply by showing that the defendant was a retail store that permitted customers to handle items and that, as a general matter, items sometimes fell to the floor and spilled. Rather, the defendant claimed, the plaintiff needed to prove the existence of some particular method of doing business within the store that created a heightened risk of danger to customers. The defendant argued that the plaintiff had failed to show that there was anything particularly hazardous about the operation of aisle seven that had created a zone of risk and had led to the spilled liquid. The trial court denied the defendant's motion, reasoning that this court's decision in Kelly permitted the plaintiff to proceed under the mode of operation rule. ¹²

The case was submitted to the jury solely on the mode of operation theory. The court charged the jury using a standard instruction designed to reflect the rule articulated in Kelly. See Conn. Civil Jury Instructions 3.9-17, available at http:// www. jud. ct. gov/ JI/ Civil/ part 3/ 3. 9- 17. htm (last visited September 7, 2010). In a blank space provided to identify the particular mode of operation at issue, the court inserted “self-service supermarket.” ¹³ The defendant excepted to the charge, arguing again that the plaintiff, to invoke the mode of operation rule, needed to show something more than that the defendant's supermarket generally was a self-service establishment. The jury thereafter returned a verdict in favor of the plaintiff, awarding $54,197.53 in total damages. ¹⁴

Thereafter, the defendant filed motions to set aside the verdict and for judgment notwithstanding the verdict, arguing that it was against the law and the evidence presented at trial. The defendant argued again that the plaintiff had slipped on a substance of unknown origin, that there was no evidence that there was anything particularly hazardous about aisle seven or any other part of the store and that the only claimed negligence was that the defendant “operate[d] as a supermarket and allow[ed] customers to enter the store and take items off the shelves.” Accordingly, the defendant argued, the evidence was insufficient to establish the defendant's negligence under a mode of operation theory.

The trial court denied both of the defendant's postverdict motions, reasoning that Kelly applied to all “typical ^{ermarket spill} cases.” In a later issued memorandum of decision, the court “concluded [that] the mode of operation rule [was] generally available for premises liability claims in self-service stores.” ¹⁵ Moreover, according to the trial court, “[t]he jury could have reasonably concluded from the evidence that the 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. This spilled liquid would constitute an unsafe condition resulting from the self-service method of operation, requiring the mode of operation charge.” This appeal followed.

I

The defendant claims first that the trial court improperly construed and applied Connecticut law on mode of operation. According to the defendant, the mode of operation rule is not triggered simply upon a showing that a retail establishment employs self-service marketing and spills generally occur, but rather, there must be some specific method of operation within the self-service retail establishment that creates a particular regularly occurring hazard and, therefore, a foreseeable risk of injury to customers. The defendant argues that to hold a retailer liable under the mode of operation exception simply because it is generally self-service would amount, in essence, to imposing strict liability upon business owners, effectively making them insurers of the safety of their customers. We agree 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. ¹⁶

[6] [7] We begin with the applicable standard of review. “[T]he scope of our appellate review depends [on] the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws...