Connecticut Supreme Court Scales Back Mode of Operation Rule

In a ruling to be released on September 21, 2010, the Connecticut Supreme Court in Fisher vs. Big Y Foods, Inc. determined that the mode of operation rule, an exception to the traditional premises liability doctrine that 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 plaintiff’s injury, does not apply generally to every transitory hazardous condition on the premises of a self-service retail establishment. Rather, in order to invoke the rule the plaintiff must prove that a particular method of operation gives rise to a foreseeable risk of a regularly occurring hazardous condition similar to the condition that caused the injury.

In Fisher, the plaintiff was shopping at a supermarket. As he walked down an aisle looking for an item on the shelving, he slipped and fell on a puddle of liquid, injuring his knee and shoulder. There was no broken container near the puddle and the source of the liquid was not apparent, but the plaintiff believed it was syrup from a can of fruit cocktail. The plaintiff presented no other evidence with respect to the cause or origin of the spill, nor any proof that spills of that type of liquid regularly occurred in the store, or that the store had or should have had notice of the condition.

The plaintiff argued that the “mode of operation” rule, recently adopted in Connecticut, relieved him from the obligation to prove notice. The defendant argued that the mode of operation rule is not triggered simply by showing that the retailer operated a self-service market and that spills occasionally occur, but that there must be some specific method of operation within the self-service retail establishment which regularly occurs and creates a hazard and foreseeable risk of injury to customers.

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

This decision is good news for self-service retailers. Plaintiffs can now no longer rely upon the fact that a defendant is simply a self-service retailer in an effort to avoid the notice requirements generally applicable in premises liability cases.