In Tommerup, we distinguished the "isolated incident" situation from circumstances where an alleged tortfeasor is charged with having actively created a foreseeable risk of danger in its course of business, stating: Appellants cite Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972) in support of this argument. That case, however, is readily distinguished on its facts.
Adkins v. The Denver Dry Goods Co., 167 Colo. 545, 448 P.2d 957 (1969); The Denver Dry Goods Co. v. Gettman, 167 Colo. 539, 448 P.2d 954 (1969); Miller v. Crown Mart, Inc., 162 Colo. 281, 425 P.2d 690 (1967); Boyd v. Hubbell, 155 Colo. 110, 392 P.2d 664 (1964); F. W. Woolworth Co. v. Peet, supra; Denver Dry Goods Co. v. Pender, 128 Colo. 281, 262 P.2d 257 (1953). In Jasko v. F. W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972), however, we recognized an exception to the requirement of actual or constructive notice when the storekeeper's operating methods "are such that dangerous conditions are continuous or easily foreseeable." Id. at 421, 494 P.2d at 840.
All, 109 Idaho at 481, 708 P.2d at 886 (internal citations omitted). See also Tommerup, 101 Idaho at 4, 607 P.2d at 1058 (quoting Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420, 494 P.2d 839, 840 (1972) (en banc) ("the Colorado Supreme Court held defendant's method of selling pizza was one which led inescapably to such mishaps as that of the plaintiff.") (emphasis added). While the jury will consider on remand whether Wal-Mart failed to exercise due care in the way it adopted and managed its operating methods, the facts here do not lead "inescapably" to the conclusion that Brooks' fall was due to continuous spills from the Rug Doctor machines, nor was her fall easily foreseeable as a matter of law.
See Sarkisian, supra at 683–684, 32 N.E.3d 854. Cf. Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420, 494 P.2d 839 (1972) (“practice of extensive selling of slices of pizza on waxed paper to customers who consume it while standing creates the reasonable probability that food will drop to the floor”); Fisher v. Big Y Foods, Inc., 298 Conn. 414, 426–427, 3 A.3d 919 (2010) (approach triggered by “showing that a more specific method of operation within a self-service retail environment gave rise” to hazardous condition); Pimentel v. Roundup Co., 100 Wash.2d 39, 49–50, 666 P.2d 888 (1983) (approach applies “if the particular self-service operation of the defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable”). b. Bowers's mode of operations claim.
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. 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
The notice requirement insures liability attaches only to owners once they have become or should have become aware of a dangerous situation. Wiltse v. Albertson's Inc., 116 Wn.2d 452, 453-54, 805 P.2d 793 (1991) (quoting Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420-21, 494 P.2d 839 (1972)). Plaintiffs, relying on the submitted affidavit of a traffic engineer, claim the parking lot, because of the steep slope, was inherently dangerous.
"Buttrey, 620 P.2d at 553 (citations omitted) ( quoting Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839, 840 (1972)). In Jasko, the operating methods, which made the dangerous condition involved — slipping on a slice of pizza — easily foreseeable, were: (1) a pizza counter located in the store which sold a high volume of pizza slices on waxed paper, (2) testimony that the store was often cleaning pizza spills off a slippery floor, and (3) that customers stood in the aisles eating their pizza slices.
Pimentel, 100 Wn.2d at 39. The new rule adopted in Pimentel was taken from a Colorado case, Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972). The Jasko court reasoned:
It does, however, eliminate the requirement that the plaintiff establish actual or constructive notice of a specific unsafe condition. The rationale for this rule was explained in Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420-21, 494 P.2d 839 (1972). The basic notice requirement springs from the thought that a dangerous condition, when it occurs, is somewhat out of the ordinary.
Bozza v. Vornado, 42 N.J. 355, 200 A.2d 777 (1964)." Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839, 840 (1972). The Colorado Supreme Court went on to point out that this concept had been applied, although not specifically discussed, in Denver Dry Goods Company v. Gettman, 167 Colo. 539, 448 P.2d 954 (1969), a case factually similar to this case.