Date: 09-21-2010

Case Style: Leo A. Fisher III v. Big Y Foods, Incl.

Case Number: SC 18406

Judge: Rogers

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Mark J. Migliaccio, Butler Norris & Gold, Hartford, Connecticut, for the appellee (plaintiff).

Defendant's Attorney: Sandra Rachel Stanfield and David Estabrook, Regnier, Taylor, Curran & Eddy, Hartford, Connecticut, for the appellant (defendant).

Jack Steigelfest Howard, Kohn, Sprague & FitzGerald, L.L.P., Hartford, Connecticut and Claudia Baio, Law Offices of Baio & Associates, P.C., Rocky Hill, Connecticut filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

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

Description: 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 claims2 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 liability9 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/part3/ 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 [supermarket 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 selfservice 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

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 conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.’’ (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., supra, 281 Conn. 776. The parties do not disagree materially on the facts, but only on whether the mode of operation rule potentially could apply to those facts. According to the defendant, the evidence presented at trial implicated only traditional premises liability doctrine.

Because the defendant claims that the trial court’s rulings improperly permitted application of the wrong legal standard, our review is plenary. Id.

As an initial matter, we look to the language of the mode of operation rule as we stated it in Kelly. We summarized the plaintiff’s burden of showing that the rule applies in a particular case as follows: ‘‘[A] plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of operation of the defendant’s business gives rise to a foreseeable risk of injury to customers and that the plaintiff’s injury was proximately caused by an accident within the zone of risk.’’ Id., 791. Notably, we included the requirement that a plaintiff’s injury occur within a ‘‘zone of risk.’’

Id. If a ‘‘mode of operation’’ could be self-service merchandising itself, then an entire store necessarily would be rendered a ‘‘zone of risk’’ due to the readily established fact that merchandise, as a general matter, sometimes falls and breaks. Accordingly, the requirement of establishing that an injury occurred within some ‘‘zone of risk’’ essentially would be rendered superfluous. We next consider the factual context of Kelly and the claims raised therein, as the scope of a rule necessarily is informed by the particulars of the case in which it is adopted.17 Moreover, an opinion must be read as a whole, without particular portions read in isolation, to discern the parameters of its holding. See Matza v. Matza, 226 Conn. 166, 187, 627 A.2d 414 (1993). In Kelly, the plaintiff had slipped and fallen on a piece of wet lettuce on the floor near what repeatedly was described as a ‘‘self-service salad bar’’ within the defendant’s supermarket. Kelly v. Stop & Shop, Inc., supra, 281 Conn. 770. In the section of the opinion outlining the factual underpinnings of the plaintiff’s claim, we included a detailed description of the salad bar and the surrounding area, the manner in which store patrons served themselves from the salad bar; id.; and the store manager’s characterization of the salad bar area as ‘‘precarious’’ and requiring special attention because of the frequency with which food fell to the floor. Id., 772.

When describing the procedural history of the case, we noted the plaintiff’s allegation in her complaint that the dangerous condition of the wet lettuce ‘‘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.’’ (Emphasis added.) Id., 774. Moreover, we observed that the plaintiff, when she urged the trial court to adopt the mode of operation rule, had argued 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.’’ (Emphasis added.) Id. Finally, in agreeing with the plaintiff that this court should adopt the mode of operation rule, we agreed ‘‘that she [had] adduced sufficient evidence at trial to support a finding in her favor under that rule.’’ Id., 775.

Specifically, there was testimony ‘‘that the area around the salad bar was ‘precarious’ because customers regularly caused items from the salad bar to fall to the floor below. Indeed, because the defendant knew of the dangers associated with maintaining a self-service salad bar, the defendant had a policy of stationing an attendant at the salad bar for the purpose of keeping the area clean and safe. Moreover, the plaintiff testified that she fell when she slipped on a ‘wet, slimy piece of . . . lettuce’ while she was making a salad at the salad bar. This evidence was adequate to permit a finding that the salad bar created a foreseeable risk of danger to customers . . . and that the plaintiff’s fall had resulted from that dangerous condition.’’ (Citation omitted; emphasis added.) Id., 793.

Thus, in Kelly, we agreed with a claim that a particular method of operation within a generally self-service supermarket had created a regularly occurring hazardous condition, and our holding, which included the adoption of the mode of operation rule, necessarily corresponded to that claim.18 In concluding that the mode of operation rule could apply to the facts of the case, we emphasized evidence that related to the particular method of operating the salad bar and showed that the salad bar was hazardous.

We acknowledge that, in discussing the policy underpinnings of the mode of operation rule, we quoted broad language from cases of other jurisdictions which, read in isolation, might suggest that the rule applies generally throughout self-service retail establishments, because customers in such establishments must move throughout the premises and select items themselves, increasing the potential for spills, and they may be distracted by signs and merchandise displays and not notice such spills. We observed additionally that, in the modern retail environment, duties historically performed by employees now are undertaken by customers, resulting in certain cost savings to the business owner.19 See id., 778, 781. The foregoing factors undoubtedly have influenced the decisions by many of our sister states to adopt the mode of operation rule or some variation thereof. A close examination of the cases cited in Kelly and additional, similar jurisprudence makes clear, however, that in most jurisdictions recognizing the mode of operation rule, it is not triggered by the mere presence of those factors, i.e., simply because the defendant is a retail store that allows customers to remove items from shelves and items sometimes are dropped, but only upon an additional showing that a more specific method of operation within a self-service retail environment gave rise to a foreseeable risk of a regularly occurring hazardous condition20 similar to the particular condition that caused the injury.21

Accordingly, many of the authorities relied upon in Kelly involved produce displays or other instances of unwrapped and/or ready to eat food that customers were encouraged to handle, which, according to the courts, made the particular resultant hazard readily foreseeable.22 See, e.g., Jasko v. F. W. Woolworth Co., 177 Colo. 418, 419–20, 494 P.2d 839 (1972) (slice of pizza near counter where pizza was dispensed on sheets of wax paper and no seating was available); Gump v. Wal- Mart Stores, Inc., 93 Haw. 417, 419, 5 P.3d 407 (2000) (french fry from fast-food restaurant located inside retail store); McDonald v. Safeway Stores, Inc., 109 Idaho 305, 307, 707 P.2d 416 (1985) (melted ice cream on day store had conducted three ice cream displays that provided ice cream to customers, including children); Jackson v. K-Mart Corp., 251 Kan. 700, 701, 840 P.2d 463 (1992) (spilled avocado juice from in-store cafeteria that permitted customers to carry food onto shopping floor); Dumont v. Shaw’s Supermarkets, Inc., 664 A.2d 846, 847 (Me. 1995) (chocolate-covered peanut from bulk, unwrapped candy bin); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 248, 849 P.2d 320 (1993) (grape on floor in produce section); Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 561, 818 A.2d 314 (2003) (grapes displayed in open-topped bags that permitted spillage); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429, 221 A.2d 513 (1966) (green beans sold from ‘‘open bins on a self-service basis’’); Lingerfelt v. Winn-Dixie Texas, Inc., 645 P.2d 485, 486 (Okla. 1982) (strawberries heaped in uncovered containers); Cobb v. Skaggs Cos., 661 P.2d 73, 74 (Okla. App. 1982) (grapes from open display); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 294 (Tex. 1983) (grape ‘‘directly in front of the [slanted] self-service grape bin’’);23 Canfield v. Albertsons, Inc., 841 P.2d 1224, 1225 (Utah App. 1992) (lettuce leaf from open ‘‘ ‘farmer’s pack display’ ’’ in which wilted outer leaves were left intact for customers to remove and discard), cert. denied, 853 P.2d 897 (Utah 1993); Malaney v. Hannaford Bros. Co., 177 Vt. 123, 125, 861 A.2d 1069 (2004) (grapes from self-service display); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 56, 150 N.W.2d 361 (1967) (Italian prune from pile on table in aisle). Some cases did not involve unwrapped food, but still focused on particular hazardous conditions that, the evidence showed, were likely to recur repetitively under the circumstances. See, e.g., F. W. Woolworth Co. v. Stokes, 191 So. 2d 411, 416 (Miss. 1966) (rainwater regularly tracked inside store by customers on stormy day); Mahoney v. J. C. Penney Co., 71 N.M. 244, 249–52, 377 P.2d 663 (1962) (gum or sticky substance on entryway steps frequently littered with gum and trash); Ciminski v. Finn Corp., 13 Wn. App. 815, 817–18, 537 P.2d 850 (liquid on floor of selfservice cafeteria in particular area where spills tended to occur when food trays were replenished or when customers dropped items), review denied, 86 Wn. 2d 1002 (1975); Steinhorst v. H. C. Prange Co., 48 Wis. 2d 679, 681, 684, 180 N.W.2d 525 (1970) (shaving cream from tester cans on self-service cosmetic counter where children were spotted playing); Buttrey Food Stores Division v. Coulson, 620 P.2d 549, 550–51 (Wyo. 1980) (wet spot inside store entrance when melting snow and ice had accumulated in outside parking lot).24

In each of the foregoing cases, the court related the hazardous condition to the particular method of operation at issue, rather than attributing it solely to the general self-service nature of the business establishment.

See Jasko v. F. W. Woolworth Co., supra, 177 Colo. 420 (‘‘defendant’s method of selling pizza’’ created dangerous condition); Gump v. Wal-Mart Stores, Inc., supra, 93 Haw. 418 (specifically limiting application of rule to circumstances of case, i.e., when ‘‘a commercial establishment, because of its mode of operation, has knowingly allowed the consumption of ready-to-eat food within its general shopping area’’); McDonald v. Safeway Stores, Inc., supra, 109 Idaho 307 (upholding trial court’s denial of summary judgment to defendant on reasoning that ‘‘[t]he mode of operation of the ice cream demo on a very busy Good Friday, combined with the abnormally large crowds and other demos, in and of itself could constitute an act of negligence’’); Jackson v. K-Mart Corp., supra, 251 Kan. 702, 710–11 (questions for jury on remand were whether dangerous condition due to defendant’s allowing customers to carry food and drink onto shopping floor was reasonably foreseeable and, if so, whether defendant had failed to exercise reasonable care); Dumont v. Shaw’s Supermarkets, Inc., supra, 664 A.2d 848 (holding mode of operation rule potentially applicable because defendant knew ‘‘that items with similar characteristics to the chocolate-covered peanuts created an increased hazard to customers’’); Sprague v. Lucky Stores, Inc., supra, 109 Nev. 251 (noting evidence of ‘‘virtually continual debris on the produce department floor’’); Nisivoccia v. Glass Gardens, Inc., supra, 175 N.J. 565 (method of packaging grapes made it ‘‘foreseeable . . . that loose grapes would fall to the ground . . . creating a dangerous condition’’); Wollerman v. Grand Union Stores, Inc., supra, 47 N.J. 429 (‘‘When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate . . . .’’ [Emphasis added.]); Mahoney v. J. C. Penney Co., supra, 71 N.M. 260 (observing that defendant ‘‘knew the propensities of its customers to litter the floors and stairway with dangerous substances such as chewing gum’’); Lingerfelt v. Winn-Dixie Texas, Inc., supra, 645 P.2d 489 (key element of evidence was testimony of three employees that strawberries normally were covered with cellophane for safety reasons); Cobb v. Skaggs Cos., supra, 661 P.2d 76–77 (jury could ‘‘find that [the defendant] created and maintained a foreseeable, unreasonable risk by displaying the grapes in such a manner without the protection of a table guard or other protective scheme’’); Corbin v. Safeway Stores, Inc., supra, 648 S.W.2d 294 (noting defendant’s awareness ‘‘that the grape bin was an unusually hazardous and continual source of slippery material on which customers may fall’’); Canfield v. Albertsons, Inc., supra, 841 P.2d 1227 (when defendant ‘‘chose a method of displaying and offering lettuce for sale where it was expected that third parties would remove and discard the outer leaves from heads of lettuce they intended to purchase . . . [i]t was reasonably foreseeable that . . . some leaves would fall or be dropped on the floor by customers thereby creating a dangerous condition’’); Malaney v. Hannaford Bros. Co., supra, 177 Vt. 135 (plaintiff had submitted sufficient evidence to avoid directed verdict on issue of ‘‘the reasonableness of the steps taken by [the] defendant to address the known hazard posed by the grape display’’); Ciminski v. Finn Corp., supra, 13 Wn. App. 823 (plaintiff survived summary judgment by submitting ‘‘evidence that there tended to be spills in the area where she fell, and that the floor in this area was sometimes greasy’’ [emphasis added]); Steinhorst v. H. C. Prange Co., supra, 48 Wis. 2d 684 (‘‘unsafe condition here was substantially caused by the method used to display merchandise for sale,’’ namely, the self-serve shaving soap counter); Strack v. Great Atlantic & Pacific Tea Co., supra, 35 Wis. 2d 56 (defendant’s liability rested on, inter alia, ‘‘the manner in which the Italian prunes were displayed’’); Buttrey Food Stores Division v. Coulson, supra, 620 P.2d 553 (‘‘existence of water on the floor of the store premises was a reasonable probability because of the weather conditions’’).

We acknowledge that, in a handful of the cases cited in Kelly, courts held that the mode of operation rule, or something analogous, was applicable generally to transitory hazardous conditions in self-service retail establishments.25 See Safeway Stores, Inc. v. Smith, 658 P.2d 255, 258 (Colo. 1983); Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331 (Fla. 2001); Golba v. Kohl’s Dept. Store, Inc., 585 N.E.2d 14, 17 (Ind. App. 1992); Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 436 (Ky. 2003); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So. 2d 486, 488 (La. 1976); Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 780 (Mo. 1989). In two of the foregoing jurisdictions, however, the courts’ decisions subsequently were overruled legislatively, and in two others, the jurisprudential underpinnings for the decisions were weakened substantially by subsequent case law.26 When the question has presented itself directly, several courts have clarified that the mode of operation rule is not triggered simply upon a showing that a retail establishment, as a general matter, is self-service. For example, in Hembree v. Wal-Mart of Kansas, 29 Kan. App. 2d 900, 903, 35 P.3d 925 (2001), the Court of Appeals of Kansas concluded that the mode of operation rule did not apply to a plaintiff’s slip and fall at a department store in what was believed to be spilled Noxema skin cream, even though the store ‘‘was the type . . . where shoppers were invited to come in and pick up, carry, examine, and purchase merchandise for themselves.’’ Id., 904. It concluded that ‘‘[t]he mode-ofoperation rule is of limited application because nearly every business enterprise produces some risk of customer interference. If the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law. A plaintiff could get to the jury in most cases simply by presenting proof that a store’s customer could have conceivably produced the hazardous condition.’’ (Internal quotation marks omitted.) Id., 903. In short, ‘‘[t]he rule is not intended to uniformly cover all self-service situations.’’ (Emphasis added.) Id., 904.

In Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398, 401, 733 P.2d 283 (1987), the Supreme Court of Arizona stated that application of the mode of operation rule was not limited ‘‘to produce or pizza’’ and potentially was implicated by spilled creme rinse, but only if the plaintiff could show that it was reasonably foreseeable that creme rinse would be spilled on a regular basis. In other words, the mode of operation rule did not apply upon a showing that spills generally occurred due to customer activity and that the plaintiff slipped in a spilled substance. See also Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 138, 140, 149 P.3d 761 (App. 2006) (mode of operation rule inapplicable to plaintiff’s fall on slimy blue substance in drugstore; although store manager had testified that spills generally happened twice weekly, no specific evidence was presented as to types, locations of spills).

The law on the scope of the mode of operation rule is perhaps most developed in the state of Washington. In Ciminski v. Finn Corp., supra, 13 Wn. App. 818–19, the case in which the Washington courts first recognized the rule, the Court of Appeals discussed the shift in merchandising methods from individualized clerkbased assistance to a self-service model, how that shift was accompanied by a greater incidence of spilled substances and distracted customers prone to stepping in them and how it resulted in pecuniary benefit to the business owner, making reallocation of risk a matter of fairness.27 Subsequent Washington jurisprudence made clear, however, that although the foregoing circumstances were factors underlying the jurisdiction’s decision to adopt the mode of operation rule, the modern, generally self-service method of merchandising itself was not a ‘‘mode of operation’’ that triggers the application of the rule and dispenses with traditional notice requirements.28

Specifically, in Pimentel v. Roundup Co., 100 Wn. 2d 39, 49, 666 P.2d 888 (1983), the Supreme Court of Washington repudiated the Court of Appeals’ language in Ciminski ‘‘suggest[ing] that the requirement of showing notice is eliminated as a matter of law for all selfservice establishments,’’ and instead held that ‘‘the requirement of showing notice will be eliminated only if the particular self-service operation of the defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable.’’ (Emphasis added.) Id., 50; see also White v. Safeway, Inc., Court of Appeals of Washington, Docket No. 35960-0-II, 2008 Wn. App. LEXIS 456, *4 (February 26, 2008) (‘‘[t]hat a business is a self-service operation is insufficient, standing alone, to bring a claim for negligence within the [mode of operation] exception’’); Carlyle v. Safeway Stores, Inc., 78 Wn. App. 272, 277, 896 P.2d 750 (mode of operation rule ‘‘does not apply to the entire area of the store in which customers serve themselves’’), review denied, 128 Wn. 2d 1004, 907 P.2d 297 (1995).

Instead, the exception is meant to be a narrow one, and ‘‘applies only to those areas where risk of injury is continuous or foreseeably inherent in the nature of the business or mode of operation. . . . Thus a plaintiff who slips and falls in a grocery store cannot survive summary judgment by merely raising the inference that the substance causing her fall came from within the store; rather, the plaintiff must show that such spills were foreseeable in the specific area where she fell.’’ (Citation omitted; emphasis added; internal quotation marks omitted.) White v. Safeway, Inc., supra, 2008 Wn. App. LEXIS *5. Accordingly, in Carlyle v. Safeway Stores, Inc., supra, 78 Wn. App. 277, the mode of operation rule did not apply to a leaking bottle of shampoo on the floor in the coffee section of a supermarket, because that type of spill was not shown to be reasonably foreseeable. See also Schmidt v. Coogan, 135 Wn. App. 605, 612, 145 P.3d 1216 (2006) (same), rev’d on other grounds, 162 Wn. 2d 488, 173 P.3d 273 (2007); Linehan v. Safeway Stores, Inc., Washington Court of Appeals, Docket No. 49947-5-I (February 18, 2003) (reversing trial court’s denial of summary judgment to defendant when plaintiff, who had slipped on spilled sugar, failed to present ‘‘some evidence indicating that the spill was inherently foreseeable in the area where the injury occurred’’); Ingersoll v. DeBartolo, Inc., 123 Wn. 2d 649, 654–55, 869 P.2d 1014 (1994) (mode of operation rule inapplicable to spilled substance in common area of mall because plaintiff failed to show that vendors’ methods of operation resulted in debris or substances on floor). Conversely, in White v. Safeway, Inc., supra, *6–8, the mode of operation rule was held applicable to chicken grease on the floor near a selfserve roasted chicken cart in a supermarket. Because the evidence showed that customers were invited to serve themselves, and the chickens were hot, greasy and packaged in unsealed containers, slippery spills in the vicinity of the cart were reasonably foreseeable.

We conclude by noting that a rule that presumptively established a storekeeper’s negligence simply for having placed packaged items on shelves for customer selection and removal, without requiring any evidence that they were displayed in a particularly dangerous manner,29 would require us to ignore the modern day reality that all retail establishments operate in this manner and, given competitive considerations and customer demands, they have no other choice. The North Carolina Court of Appeals, in rejecting a plaintiff’s claim that a movie theater’s darkened state was a ‘‘mode of operation’’ that had made his trip and fall reasonably foreseeable, made the following salient observation: ‘‘[The] plaintiff’s argument must fail—for the simple reasoning that, movie theatres could not do business at all if they could not be darkened.’’ Kearns v. Horsley, 144 N.C. App. 200, 205, 552 S.E.2d 1, review denied, 354 N.C. 573, 559 S.E.2d 179 (2001). Consequently, the claimed ‘‘ ‘mode of operation’ is a theatre’s only method of operation and as such, the theatre cannot be considered negligent [for employing it] but instead, its patrons must be considered to have assumed the risk in order to take part in the activity provided.’’ (Emphasis in original.)

Id. Similarly, a modern supermarket’s only method of operation is to place items on shelves for customer selection and removal. Accordingly, a defendant cannot be considered negligent solely on the ground that it has employed that method.

When a ‘‘dangerous condition arises through means other than those reasonably anticipated from the mode of operation, the traditional burden of proving notice remains with the plaintiff.’’ Gump v. Wal-Mart Stores, Inc., supra, 93 Haw. 420; see also Jackson v. K-Mart Corp., supra, 251 Kan. 710; Ingersoll v. DeBartolo, Inc., supra, 123 Wn. 2d 655. Consequently, when a plaintiff injured by a transitory hazardous condition on the premises of a self-service retail establishment fails to show that a particular mode of operation made the condition occur regularly or rendered it inherently foreseeable, the plaintiff must proceed under traditional premises liability doctrine, i.e., he must show that the defendant had actual or constructive notice of the particular hazard at issue.30 On the basis of the foregoing analysis, we conclude that the trial court’s construction of the mode of operation rule was improper.

II

The defendant claims next that the trial court improperly denied its motions for directed verdict, to set aside the verdict and for judgment notwithstanding the verdict on the basis of its misconstruction of the law concerning mode of operation. It argues that, because the plaintiff failed to present evidence to support application of the mode of operation theory, the only theory on which the plaintiff chose to try the case, the trial court should have granted its motions. We agree. ‘‘The standards for appellate review of a directed verdict31 are well settled. Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court’s decision [to deny the defendant’s motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff. . . .

Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation. . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.’’ (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). Additionally, if, as a matter of law, the mode of operation rule was not implicated by the circumstances of this case, then the trial court was required to direct a verdict in the defendant’s favor. See Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988); see also Lin v. National Railroad Passenger Corp., 277 Conn. 1, 6, 889 A.2d 798 (2006) (‘‘[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding’’ [internal quotation marks omitted]).

The evidence presented at trial, viewed in the light most favorable to the plaintiff, reasonably supported a finding that the plaintiff had slipped on fruit cocktail syrup that somehow had leaked from a product originating in the defendant’s store. Although circumstantial, the evidence in this regard was substantial. Accordingly, we reject the defendant’s argument that the plaintiff’s failure to prove the precise cause or origin of the spill was fatal to his case. Nevertheless, because no evidence was presented to show that there was anything particularly dangerous about the defendant’s method of offering packaged fruit products for sale, making their spillage inherently foreseeable or regularly occurring, the plaintiff failed to make out a prima facie case of negligence under the mode of operation rule. Because the jury could not properly find for the plaintiff on that theory, the only theory on which the plaintiff had proceeded, the trial court’s refusal to direct a verdict for the defendant was improper.

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See: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR298/298CR103.pdf

Outcome: The judgment is reversed and the case is remanded with direction to set aside the jury’s verdict and to render judgment in favor of the defendant.

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