Kelly v. Stop and Shop, Inc.

• Decision Date: 03 April 2007
• Docket Number: No. 17404.,17404.
• Citation: 918 A.2d 249,281 Conn. 786
• Parties: Maureen KELLY et al. v. STOP AND SHOP, INC.
• Court: Connecticut Supreme Court

918 A.2d 249

281 Conn. 786

Maureen KELLY et al. v. STOP AND SHOP, INC.

No. 17404.

Supreme Court of Connecticut.

Argued February 7, 2006.

Decided April 3, 2007.

Steve D. Ecker, Hartford, with whom, on the brief, were, James R. Smart, Michael A. Stratton, Joel T. Faxon and Michael R. Denison, New Haven, for the appellant (named plaintiff).

Suzannah K. Nigro, Trumbull, for the appellee (defendant).

NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA, DiPENTIMA and McLACHLAN, Js.¹

PALMER, J.

The principal issue raised by this appeal is whether this court should adopt the so-called "mode of operation" rule, a rule of premises liability pursuant to which a business invitee who is injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of 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. The named plaintiff,² Maureen Kelly, commenced this action against the defendant, Stop and Shop, Inc., seeking compensation for injuries that she had 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 the self-service salad bar of a supermarket owned and operated by the defendant in Fairfield. After a bench trial, the trial court found that the plaintiff had failed to meet her burden of establishing that the defendant had actual or constructive notice of the piece of lettuce and, on that basis, rendered judgment for the defendant. On appeal,³ the plaintiff contends that the trial court improperly declined to consider her claim of liability under the mode of operation rule. We agree with the plaintiff that this court should adopt the mode of operation rule and, therefore, reverse the judgment of the trial court.

The following evidence was adduced at trial. At approximately 11:30 a.m., on November 2, 1999, the plaintiff arrived at the defendant's supermarket in Fairfield to purchase groceries and to make herself a salad for lunch. Upon entering the store, she secured a shopping cart and went directly to the self-service salad bar located near the produce and floral departments of the store. The salad bar was surrounded on both sides by a narrow floor runner, approximately two to three feet wide, on which patrons stood while they served themselves. The floor itself was made of tile or linoleum. The salad bar had no railings and was framed by a four inch ledge that was too narrow to accommodate trays or containers. As a result, patrons customarily would hold their containers aloft, over the floor area, while serving themselves from the salad bar. The plaintiff parked her shopping cart alongside the salad bar, picked up an aluminum container and filled it with cottage cheese and fruit. When she was finished, she turned to get a lid and, while doing so, stepped off the runner to get around her shopping cart. As she stepped onto the tile or linoleum floor, her left foot began to slide, causing both of her feet to kick up into the air and the aluminum container to be dislodged from her grasp. The plaintiff landed on her left shoulder.

While the plaintiff was lying on the floor following her fall, she observed a store employee, subsequently identified as Cecilia Stacey Bombero, cleaning the cottage cheese and fruit from around the plaintiff's feet. Another person helped the plaintiff up and then went to locate the store manager. While waiting for the manager to arrive, the plaintiff wiped off her shoes with a rag that she had obtained from Bombero. At that time, the plaintiff noticed "a wet, slimy piece of green lettuce" on the side of her shoe that, according to the plaintiff, had caused her to fall. The plaintiff, however, did not see any food or other substance on the floor near the salad bar before the accident.⁴ The plaintiff also did not observe any store employees in the area of the salad bar before she fell.

The store manager, Nicholas J. Bishighini, arrived and asked the plaintiff if she was alright. The plaintiff responded that her shoulder hurt. Bishighini offered to call an ambulance, but the plaintiff declined. The plaintiff indicated that she had slipped and fallen on a piece of lettuce. Bishighini informed her that he would prepare an accident report that she could pick up the next day. The plaintiff tried to continue shopping but left the store shortly thereafter due to a throbbing pain in her left shoulder. As a consequence of her fall, the plaintiff tore her rotator cuff in her left shoulder. The injury causes the plaintiff to suffer chronic pain and has limited the plaintiff's ability to move her left shoulder and arm.⁵

According to Bishighini, the defendant's store policy called for at least one salad bar attendant to be on duty at all times. That attendant's job responsibilities included filling and maintaining the salad bar, and cleaning and patrolling the salad bar area. Typically, whenever the salad bar attendant took a break, another employee was assigned to cover the area until the attendant returned. Bishighini characterized the salad bar as "an area where people used to let . . . salads fall. It was precarious." As a consequence, Bishighini stated, "special porters" generally were stationed near the area of the salad bar.

Bishighini further explained that the defendant's store policy also required that a special report form be completed after any accident. The instructions on the front of the form provide in relevant part: "Answer all questions accurately, both sides. Have the employees fill out the reverse [side] independent of each other. Remember to sign and print your name on the bottom of this report. The maintenance report on the reverse side is to be filled out by the employee who last swept, cleaned and inspected [the area where the accident occurred]. Call the accident into corporate insurance immediately after obtaining the information. It is essential that the sweeping log and all photographs be attached to the report of accident or injury." Additionally, the store maintained an employee safety manual that provides in relevant part: "The way a customer accident is handled could be the difference between winning a court case or reducing an award [and] losing a case or sustaining punitive damages. . . . When an accident occurs . . . [m]ake no statements to the injured individual. Do not make any remarks about our insurance. . . . Be courteous and helpful. If the injured individual says anything about responsibility, courteously inform [him or her] that the accident will be reported to the general office and an investigation will be made. . . . Make a personal detailed inspection of the area where the accident occurred with at least two other employees as witnesses. Secure names and addresses of customer and employee witnesses whenever possible. . . . Take photographs of the area where the accident occurred . . . . If a fall down . . . [take photographs of] the area of the fall down and any substance on the floor. (If no substance is there take a picture of the floor.) . . . When taking the information, use the Report of Accident or Injury Form. Bring this form down to the accident scene and take all information on-the-spot."

Notwithstanding these requirements, the accident report that was completed in connection with the plaintiff's fall was dated November 29, 1999, almost one month after the accident. Furthermore, the report contained no photographs or sweeping logs. The report did note, however, that the plaintiff had slipped "on [a] green [piece] of lettuce . . . ."

The following additional facts and procedural history are relevant to our resolution of this appeal. In her complaint, the plaintiff alleged, inter alia, that the defendant negligently had allowed "pieces of wet lettuce" to accumulate on the floor in the vicinity of the salad bar, creating a dangerous and defective condition that had caused her to slip and fall. The plaintiff further alleged that the dangerous condition was the result of the defendant's method of displaying produce for consumption and that the defendant had failed to make reasonable inspections of the salad bar and the surrounding area in order to discover and remove that condition.

At the conclusion of the trial, the plaintiff urged the court to apply the mode of operation rule. Specifically, the plaintiff maintained that the evidence established that the salad bar was operated in such a manner that it was foreseeable that customers would spill or drop food from the salad bar to the floor below, thereby creating a dangerous condition. The plaintiff further claimed that, although it was the defendant's policy to inspect and clean the salad bar area routinely, the evidence indicated that the defendant failed to follow that policy. The plaintiff asserted, in particular, that the defendant's failure to provide sweeping logs and photographs with the accident report, as specifically required in the instructions accompanying the accident report form, gave rise to an inference that the floor surrounding the salad bar had not been swept or inspected in accordance with store policy.

In its memorandum of decision, the trial court concluded, in accordance with then controlling case law, that, because the plaintiff was a business invitee, she was required to prove that the defendant had actual or constructive notice of the piece of lettuce that allegedly had caused the plaintiff's fall. In view of the fact that the plaintiff's complaint did not allege that the defendant had actual notice of the piece of lettuce, the trial court focused exclusively on whether the plaintiff had established that the defendant had constructive notice of the condition. The trial court noted that, to establish constructive notice, the plaintiff was required to adduce evidence sufficient to...