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holding that, where "the accumulation of water on which the defendant fell is expressly claimed to have resulted from the work activities of a Store employee that had nothing to do with the store's self-service operations, let alone a condition of danger frequently arising therefrom, the plaintiff's claim of injury . . . is not actionable in negligence under the mode of operation rule."
Summary of this case from Gomes v. United StatesOpinion
No. CV 10-6016107-S
October 5, 2011
MEMORANDUM ORDER RE MOTION TO STRIKE
Upon considering the briefs and arguments of counsel in support of and in opposition to the motion of the defendant, Big Y Foods, Inc., to strike the second count of plaintiff Marie Martin's Revised Complaint dated August 11, 2011, the Court hereby concludes, for the following reasons, that said motion must be GRANTED:
1. This action concerns an incident that occurred at the Big Y Foods Store on Tolland Turnpike in Manchester, Connecticut on July 2, 2009. In the incident, the plaintiff allegedly slipped and fell on a puddle of water which a Big Y employee had allowed to accumulate on the floor where he was working in the Store's seafood department, "taking seafood products and related items from an open seafood case." Id., Count I, ¶ 5; Count II, ¶ 5. The plaintiff was allegedly "caused to slip and fall due to the water which the defendant's employee had allowed to accumulate near him on the aisle floor." Id., Count I, ¶ 6; Count II, ¶ 6.
2. The first count of the Revised Complaint states a claim of negligence on the theory of premises liability. It alleges that the defendant is vicariously liable for the negligence of its above-referenced employee, who negligently and carelessly allowed water to fall and accumulate on the floor of the Store in the area where he was working, but failed, despite notice of the water's presence in that location, to dry it up or to erect warning signs or barriers around it. Id., Count I, ¶ 8.
3. The second count of the Revised Complaint, by contrast, purports to state a claim of negligence against the defendant under the mode of operation rule first recognized by our Supreme Court in Kelly v. Stop and Shop, Inc., 287 Conn. 768, 918 A.2d 249 (2007). That rule permits a plaintiff who has been injured by a frequently occurring condition of danger arising from the self-service operations of a business to recover damages for his injuries without proving that the business had actual or constructive notice of the particular defect that caused his injuries.
4. Notwithstanding the manner in which the plaintiff claims that the puddle on which she slipped and fell came to be on the floor of the defendant's Store — having been allowed to accumulate there by the defendant's employee as he took seafood products and related items from an open seafood case — the plaintiff claims that she is entitled to recover damages from the defendant under the mode of operation rule. On that score, she alleges that her fall and resulting injuries were due to Big Y's negligence or carelessness in the following ways:
a. In that the defendant's mode of operation did not include reasonable and proper measures to safely maintain the area in front of and near its seafood department and take appropriate action and/or implement procedures to prevent ice in the seafood case from melting and then accumulating on the floor in front of and near the seafood case, thus creating a foreseeable risk that customers, including the plaintiff would slip and fall; [and/or]
b. In that the defendant's mode of operation did not include reasonable and proper measures to prevent water from otherwise dripping during work activities in front of the seafood case, thus creating a foreseeable risk that customers, including the plaintiff would slip and fall.
Revised Complaint, Count II, paragraph 8.
5. The defendant has moved to strike the second count, so pleaded, on the ground that, despite its repeated use of the term "mode of operation," it fails to state a claim upon which relief can be granted under the mode of operation rule. On this score, the defendant argues that the second count is legally insufficient because it fails to allege that the plaintiff's fall and resulting injuries were caused by any aspect of the defendant's self-service operations. The mode of operation rule, claims the defendant, was adapted by our Supreme Court for the purpose of relieving persons injured in self-service stores of the burden of proving that such stores had actual or constructive notice of the particular defects that caused their injuries. The reason for relaxing this requirement, the defendant claims, is that when a frequently occurring injury is caused by a danger foreseeably arising from a store's self-service operations, responsibility to guard against the danger and its harmful consequences to customers may justifiably be placed on the store. Failure by a store to take reasonable measures to prevent such injuries, either by eliminating the frequently occurring dangers that cause them or by adequately warning customers about such dangers, constitutes negligence under the mode of operation rule.
6. Here, claims the defendant, the plaintiff has failed to plead a valid and sufficient claim under the mode of operation rule because it has failed to allege that the plaintiff's injury was caused, foreseeably or otherwise, by any aspect of the store's self-service operations.
7. The plaintiff has opposed the defendant's motion to strike, contending that mode of operation allegations in ¶ 8 of her second count properly plead such a claim. What she has pleaded in that paragraph, however, is not that the injury arose from any danger foreseeably arising from the store's self-service operations, but rather from the negligence of a store employee in performing his assigned duties as a stocker of merchandise in the seafood department. A defendant's failure to take reasonable steps to prevent ice from melting, then accumulating on the floor of its seafood department, may, of course, constitute negligence on the traditional theory of premises liability; provided the defendant has actual or constructive notice of the particular defect that caused the plaintiff's injury. However, it cannot, without more, establish liability under the mode of operation rule, for that rule, as the defendant has correctly argued, applies only if the plaintiff's injuries were caused by a danger foreseeably arising from the self-service operations of the store, as might be the case, for example, if the melting of ice in and accumulation of water on the floor of its seafood department was caused by the particular manner in which customers are allowed to make selections of fish or other products from ice-filled chests or freezers, from which ice frequently falls to the floor. Here, however, since the accumulation of water on which the defendant fell is expressly claimed to have resulted from the work activities of a Store employee that had nothing to do with the store's self-service operations, let alone a condition of danger frequently arising therefrom, the plaintiff's claim of injury, though actionable in negligence as a traditional claim of premises liability, is not actionable in negligence under the mode of operation rule.
Accordingly, the defendant's motion to strike is hereby GRANTED. IT IS SO ORDERED this 5th day of October 2011.