July 30, 2009
By: David K. Jaffe
Mode of Operation Rule in Self-Service Business
The Connecticut Supreme Court first recognized the "mode of operation" as a standard of proof in a premises liability action in Kelly v. Stop & Shop, 281 Conn. 768 (2007). Business invitees, in Connecticut, may now recover for an injury from a dangerous condition on the business's premises "without a showing that the business had actual or constructive notice of that condition, if the condition was reasonably foreseeable and the business failed to take reasonable measures to discover and remove it.
The Kelly Court reviewed the law of premises liability: "It is undisputed that the owner of a retail store has a duty to keep the premises in a reasonably safe condition for the benefit of its customers. See, e.g. Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140 (2002). Recently, we reiterated the legal standard that this court ordinarily has applied to premises liability claims brought by business invitees: Typically, for a plaintiff to recover for the breach of a duty owed to him as a business invitee, it is incumbent upon him to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused his injury or constructive notice of it. The notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it. In the absence of allegations and proof of any facts that would give rise to an enhanced duty, a defendant is held to the duty of protecting its business invitees from known, foreseeable dangers."
In Kelly, the Court adopted the mode of operation rule to relieve a plaintiff from proving notice if the defendant's "self-service mode of operation business gave 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."
The Court described the rationale for relaxing the traditional notice requirements: "The modern self-service form of retail encourages patrons to obtain for themselves from shelves and containers the items they wish to purchase, and to move them from one part of the store to another in baskets and shopping carts as they continue to shop for other items, thus increasing the risk of droppage and spillage." "In a self-service operation, an owner has for his pecuniary benefit required customers to perform the tasks previously carried out by employees. Thus, the risk of items being dangerously located on the floor, which previously was created by employees, is now created by other customers."
The mode of operation rule is not a separate cause of action. Rather, it is a manner in which the notice requirement is addressed to determine liability in premises liability cases.
The Kelly Court articulated its reasons for adopting the new rule:
1. The mode of operation rule provides the most fair and equitable approach to the adjudication of premises liability claims brought by business invitees seeking compensation for injuries arising out of a business owner's self-service method of operation. Because self-service businesses are likely to achieve savings by virtue of their method of operation, it is appropriate to hold them responsible for injuries to customers that are a foreseeable consequence of their use of that merchandising method approach, unless they take reasonable precautions to prevent such injuries.
2. The essential premise of the rule requiring a business invitee to prove actual or constructive notice of the unsafe condition is incompatible with the self-service method of operation. Self-service businesses are aware that some customers will be injured due to the conduct of other customers because such injuries are a likely and therefore foreseeable consequence of the self-service method of operation.
3. The requirement of actual or constructive notice places a difficult - and frequently insuperable - burden on injured customers to establish when the unsafe condition arose. An injured customer is often at a decided disadvantage in determining what has happened. The fall victim may be dazed, helpless and friendless, unable to interview bystanders or to observe the scene carefully. The store, on the other hand, is able to make an immediate investigation, interviewing witnesses and diagramming the scene.
4. The mode of operation rule encourages self-service businesses to exercise reasonable case in their dealings with customers by assigning liability as accurately as possible to those parties that reasonably may foresee harm on their premises.
In Kelly, 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 held adequate to permit a finding that the salad bar created a foreseeable risk of danger to customers.
 At least 23 other states have adopted the "mode of operation" rule for determining liability in slip and fall cases. See generally S. Winegar, Reapportioning the Burden of Uncertainty: Storekeeper Liability in the Self-Service Slip-and-Fall Case, 41 U.C.L.A. L. Rev. 861 (1994).
 Kelly v. Stop & Shop, Inc., 281 Conn. 768, 793 (2007).
 Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776 (2007) (Citations omitted; internal quotation marks omitted).
 Kelly v. Stop & Shop, Inc., 281 Conn. 768, 792 (2007).
 Kelly v. Stop & Shop, Inc., 281 Conn. 768, 778 (2007).
 Kelly v. Stop & Shop, Inc., 281 Conn. 768, 781 (2007).
 Berry v. Staples Conn., Inc., 2008 Conn. Super. LEXIS 2602.
 Kelly v. Stop & Shop, Inc., 281 Conn. 768, 786-789 (2007).
 See Monk v. Temple George Assocs., LLC, 273 Conn. 108, 121 n.11 (2005).