Opinion
No. FST CV 07 5003935 S
May 29, 2009
MEMORANDUM OF DECISION
The plaintiff, Steven Straub (Straub), brought this action against the defendant, the Stop Shop Supermarket Company, LLC (Stop Shop). The court finds the following facts: on September 6, 2005, Straub was shopping at Stop Shop's grocery store in Norwalk, Connecticut when he slipped and fell. Straub slipped on a grape while walking in the store's bake shop. Grapes are not sold in the bake shop but instead the produce department.
Straub claims damages arising from injuries he allegedly sustained.
DISCUSSION
The first issue before the court is whether the mode of operation rule, adopted by our Supreme Court in Kelly v. Stop Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007), applies to this case. "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 . . . Typically, [f]or [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 . . . [T]he 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.
"If the plaintiff, however, alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof of notice is not necessary . . . That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof . . . When, however, the plaintiff does not allege either that the defendants conduct created the unsafe condition or that the defendant had actual notice of the condition . . . [t]he controlling question [becomes] that of constructive notice: whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it . . . What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case. The nature of the business and the location of the foreign substance would be factors in this determination . . . To a considerable degree each case must be decided on its own circumstances. Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant." (Internal quotation marks omitted; citations omitted.) Kelly v. Stop Shop, Inc., supra, 281 Conn. 776-77.
Our Supreme Court has recently modified the law of premises liability by adopting the mode of operation rule. Kelly v. Stop Shop, Inc., supra, 281 Conn. 793. The mode of operation rule is "a rule of premises liability pursuant to which a business invitee who is injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition if the business' chosen mode of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it." Id., 769-70. "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." Berry v. Staples Connecticut, Inc., Superior Court, judicial district of Hartford, Docket No. CV 085018858 (October 9, 2008, Aurigemma, J.) (46 Conn. L. Rptr. 505, 506).
"[A] plaintiff establishes a prima facie case of negligence [under the mode of operation rule] 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. The defendant may rebut the plaintiff's evidence by producing evidence that it exercised reasonable care under the circumstances." Kelly v. Stop Shop, Inc., supra, 281 Conn. 791.
Regarding the first part of the mode of operation rule, our courts have not addressed whether an item from a different section of a store gives rise to a foreseeable risk of injury. A review of case law from other jurisdictions is therefore appropriate.
The Supreme Court of New Jersey, in Nisivoccia v. Glass Gardens, 175 N.J. 559, 818 A.2d 314 (2003), addressed a similar issue. In Nisivoccia, the plaintiff slipped and fell on some loose grapes "[a]pproximately three feet from the entry of a supermarket checkout aisle . . ." Id., 561. Regarding the foreseeability of the injury, the court held that: "A location within a store where a customer handles loose items during the process of selection and bagging from an open display obviously is a self-service area, A mode-of-operation charge is appropriate when loose items that are reasonably likely to fall to the ground during customer or employee handling would create a dangerous condition . . . Customers typically unload their carts onto the checkout counter. Droppage and spillage during that process are foreseeable. Indeed, because of the way the grapes were packaged, they could easily have fallen out when accidentally tipped or upended in a shopping cart anywhere in the store. The open and air-vented bags invited spillage. It was foreseeable then that loose grapes would fall to the ground near the checkout area, creating a dangerous condition for an unsuspecting customer walking in that area." Id., 565.
The Court of Appeals of Wisconsin also dealt with this issue in Megal v. Green Bay Area Visitor, 267 Wis.2d 800, 672 NW.2d 105 (2003). In Megal, the plaintiff "attended an ice show at the [defendant's] arena . . . [The plaintiff] sat in the upper level. After the show ended, she was exiting by walking down a stairway . . . [The plaintiff] slipped on a two-or three-inch ketchup-soaked french fry on one of the bottom stairs." Id., 804. "Patrons [could] purchase concessions in the lower concourse of the arena . . . There [were] no restrictions on where patrons can take their concessions in the arena." Id. After the plaintiff sued, "[t]he arena moved for summary judgment, and the trial court granted the motion." Id., 805.
The plaintiff argued on appeal that the "patrons could take concessions anywhere in the arena" and "a jury could conclude that this creates a foreseeable danger because it is a reasonable assumption patrons would drop food at some time." Id., 807. The court held that the mode of operation exception "has only been applied in self-service situations such as the produce department of a grocery store . . . or a cosmetics counter . . . More important, it has been limited to the immediate area where the dangerous condition was created, namely at the location of the self-service. In [past cases], the debris fell immediately adjacent to the area from which it came. Here, the french fry was well removed from the area where it was purchased." Id., 811. Accordingly, the court declined to apply the mode of operation rule.
Perhaps most factually similar is the decision from the Court of Appeals of Washington in Carlyle v. Safeway Stores, Inc., 78 Wash.App. 272, 896 P.2d 750 (1995). In Carlyle, the plaintiff was shopping at the defendant's store. "As she stepped forward and reached for a container of coffee on the top shelf of the coffee section, her right foot slipped out from under her. The supervisor on duty discovered she had stepped into a quarter-size spot of shampoo. Although shampoo was stocked several aisles away, there was a bottle lying on the floor of the coffee section, partially under the four-inch overhang of the bottom shelf." Id., 274.
The court held that the mode of operation rule "applies only to specific unsafe conditions that are continuous or foreseeably inherent in the nature of the business or mode of operation . . . Certain departments of a store, such as the produce department, are areas where hazards are apparent and therefore the proprietor is placed on notice by the activity . . . The [mode of operation] rule does not apply to the entire area of a store in which customers serve themselves . . . there must be a relation between the hazardous condition and the self-service mode of operation of the business." Carlyle v. Safeway Stores, Inc., supra, 78 Wash.App. 276-77.
Accordingly, "[t]he Carlyle court held it was not reasonably foreseeable that a customer would slip on shampoo spilled in the coffee aisle because customers did not usually handle shampoo in this area. 78 Wash.App. at 276-77." O'Donnell v. Zupan Enterprises, Inc., 107 Wash.App. 854, 859, 28 P.3d 799 (2001). The plaintiff "failed to produce any evidence from which it could reasonably be inferred that the nature of Safeway's business and its methods of operation are such that unsafe conditions are reasonably foreseeable in the area in which she fell. The mere presence of a slick or slippery substance on a floor is a condition that may arise temporarily in any public place of business . . . [S]omething more is needed. Because there was insufficient evidence to apply the [mode of operation rule], she needed to produce evidence of actual or constructive notice. This, too, she failed to do." Id., 277.
Therefore, "a plaintiff must present some evidence that the unsafe condition in the particular location of the accident was reasonably foreseeable." Shirey v. Seattle, 133 Wash.App. 1038 (2006). "[T]he plaintiff must show that such spills were foreseeable in the specific area where she fell." White v. Safeway, Inc., 143 Wash.App. 1019 (2008).
In the present case, a bake shop clerk, Donna Marlin, credibly testified that in relation to the bake shop the produce department is at "the other end" of the store. Marlin also testified credibly that there is "a considerable distance" between the bake shop and the produce department. When asked how far, Marlin credibly testified that "[i]t's a matter of about 23 lanes, 23 aisles." Similarly, the store manager, Jim Eszterhai, credibly testified that the distance between the two locations is "about 150, 200 feet. It's quite a distance [away]." He further testified credibly that no grapes are sold in the bakery department.
Due to the "considerable distance" between the bakery and produce departments, the risk of injury from slipping on a grape in the bake shop was not foreseeable. Unlike Nisivoccia v. Glass Gardens, supra, 175 N.J. 565, where "loose grapes would fall to the ground near the checkout area" because "[c]ustomers typically unload their carts onto the checkout counter" and "[d]roppage and spillage during that process [was] foreseeable," here, Straub presented no evidence that cart items, including grapes from the produce department, are typically handled in the bakery. Much like in Carlyle v. Safeway Stores, Inc., supra, 78 Wash.App. 276-77, where "it was not reasonably foreseeable that a customer would slip on shampoo spilled in the coffee aisle because customers did not usually handle shampoo in [that] area," O'Donnell v. Zupan Enterprises, Inc., supra, 107 Wash.App. 859, here it is not foreseeable that a customer would slip on a grape in the bakery because customers do not usually handle grapes in the bakery. Furthermore, Marlin testified that the produce department was "23 aisles" away from the bakery, whereas in Carlyle v. Safeway Stores, Inc., supra, 274, the "shampoo was stocked several aisles away." Straub has presented insufficient evidence that the mode of operation of Stop Shop's business gives rise to a foreseeable risk of injury to customers, and as a result, the mode of operation rule cannot apply.
In order to recover, Straub therefore must "prove that the defendant had actual or constructive notice of the presence of the specific unsafe condition that caused [his injury]." Meek v. Wal-Mart Stores, Inc., 72 Conn.App. 467, 474, 806 A.2d 546 (2002). Straub has not argued, nor offered any evidence, that Stop Shop had actual notice of an unsafe condition. Instead, Straub argues that Stop Shop had constructive notice because "using reasonable care, [Stop Shop] should have known of the unsafe condition in time to have taken steps to correct the condition or to take other suitable precautions." As previously stated, however, "[t]he controlling question" regarding constructive notice is "whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it." Kelly v. Stop Shop, Inc., supra, 281 Conn. 777.
In the present case, Straub testified credibly that the grape on the floor looked "green and squished." When asked if he had seen the grape or grapes on the floor before he fell, Straub testified credibly "no." Straub has not presented any evidence regarding the length of time that the grape was on the floor. The grape could have fallen only a moment before Straub slipped on it. The evidence offered is insufficient to prove constructive notice.
CONCLUSION
In summary, Straub has failed to prove a prima facie case of negligence under the mode of operation rule because he has not proven that the mode of operation of Stop Shop's business gave rise to a foreseeable risk of injury to customers. Because the mode of operation rule cannot apply, it is unnecessary for the court to determine whether Straub's injury was proximately caused by an accident within the zone of risk. Furthermore, Straub has not demonstrated that Stop Shop had either actual or constructive notice of the unsafe condition because it has not offered proof as to the length of time the unsafe condition existed. Straub therefore cannot recover for any breach of Stop Shop's duty to keep its premises in a reasonably safe condition because Stop Shop did not have notice of the unsafe condition. Accordingly, the court renders judgment in favor of Stop Shop.