Back in April 2007, in a case entitled Kelly v. Stop & Shop, 281 Conn. 768 (2007), the Connecticut Supreme Court came down with a decision that forced certain retail establishments – – including landlords and premise owners to change their way of doing business with respect to duties owed to business invitees who frequent self service operations.

Before Kelly, Connecticut followed the broad traditional rule of “actual and/or constructive notice” with respect to what an injured business invitee had to establish in order to recover damages, i.e., that the defendant either had “actual notice” of the presence of the specific unsafe condition which caused the injury, or had “constructive notice” in that the condition existed for such a length of time that the defendant in the existence of reasonable care should have discovered and remedied it.

Kelly has now superceded the traditional rule – at least with respect to establishments defined as “self service operations.”

FACTS OF CASE

The facts in Kelly, were as follows: The plaintiff was at a Stop & Shop self service salad bar to make some salad for lunch. The salad bar contained no railing and had a four-inch ledge which was not wide enough to place a tray or container. The floor of the salad bar had a floor runner on both sides which were about two to three feet wide. After filling her container with cottage cheese and fruit, the plaintiff turned to get a lid and as she stepped off the runner and onto the tile, she slipped and fell, landing on her left shoulder tearing her rotator cuff. While on the floor, the plaintiff noticed “a wet slimy piece of green lettuce” on the side of her shoe. Although a store employee witnessed the plaintiff’s fall, the employee stated that the plaintiff appeared to have fallen for no reason.

The Store Manager later arrived and notified the plaintiff that he would prepare an accident report that would be available to the plaintiff the next day. (It turned out that the incident report was not completed until almost one month after the accident) The Store Manager also testified that the store’s policy called for at least one salad bar attendant to be on duty at all times. Remarkably, in describing the salad bar, the Store Manager testified that it was “an area where people used to let . . . salads fall. It was precarious.” There was also testimony about the store’s policy regarding certain standard operating procedures: that a special report form is to be completed after any accident; that a maintenance log was to be filled out by the employee who last swept, cleaned and inspected the area; photographs are to be affixed to the report, and the accident must be reported to “corporate insurance” immediately. The court noted that in this case, none of the store reporting requirements was carried out — save the incident report which was untimely (written 28 days after the incident).

At the conclusion of trial, the plaintiff argued that the court should apply the “mode of operation” rule (“MOP Rule”) in this case. The trial court declined to do so; rather, it applied the traditional “constructive notice” rule. It held that the plaintiff had failed to establish sufficient evidence to demonstrate that the lettuce, that apparently caused her to slip and fall, had been on the floor long enough such that the store in the exercise of reasonable care, should have discovered it. (“time-on-the-floor-evidence”)

The plaintiff appealed and the Supreme Court reversed the lower court and remanded the case for a new trial.

MODE OF OPERATION RULE

In recognizing the mode of operation rule, the court noted that at least twenty-two other states have now adopted this rule or some variation of it.1 A minority of states have rejected this rule.2 Under the mode of operation rule, or the “MOP” rule, the plaintiff establishes a prima facie case of negligence upon presentation of evidence that the defendant’s mode of operation presents a foreseeable risk of injury to customers and that the injury suffered was reasonably caused by an accident within the zone of risk. In acknowledging criticism to this nascent rule, that for example it will make self service businesses strictly liable for injuries to their customers, and that store owners will in effect become insurers for their customer’s safety, the court underscored the premise that a defendant may rebut the plaintiff’s prima facie evidence by producing evidence that it exercised reasonable care under the circumstances. Thus, the defendant’s burden is not one of proof, but of production. The ultimate burden of proving negligence will still remain with the plaintiff. For example, the court stated that in this case, had the defendant demonstrated that the piece of lettuce on which the plaintiff slipped had fallen to the floor only minutes before the accident “we see no reason why the storekeeper should be held liable notwithstanding proof that the storekeeper had failed to take appropriate measures to prevent such accident generally.”3

In Kelly, the Supreme Court gave four reasons for adopting the mode of operation rule: (1) in self service operations, businesses are likely to achieve savings by virtue of this method of operation; (2) the traditional rule of actual or constructive notice is incompatible with self service method of operation – there is greater likelihood that objects will fall on floors because of the carelessness of customers and employees; (3) the traditional rule of actual and constructive notice is frequently an insurmountable burden for plaintiffs — premise owners are in a superior position to establish whether they maintain the premises in a safe condition. An injured victim often is dazed and in no position to interview bystanders or to observe the scene carefully; and (4) the mode of operation is most consistent with “the general rule that every person has a duty to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct.”

POSTSCRIPT

The distinction that the court attempted to between the burden of proof (plaintiff’s), and the burden of production (defendant’s) is one without a practical difference. When the mode of operation is in effect, the defendant will almost never prevail if it fails to “produce” evidence to rebut the plaintiff’s inference of negligence. This is clearly a departure from a traditional premises case where the defendant has no burden of proof or production.

Although the Kelly court went to great lengths to make clear that the MOP rule applies only to self service operations, it would not be unreasonable to assume that this rule will be stretched beyond recognition by plaintiffs, so as to implicate nonself service establishments and enterprises — i.e., food courts in malls, which may be slightly beyond the zone of risk, or not even in the zone.

Based on the new standards now set by Kelly, here are some pointers on how selfservice operations (and non self-service enterprises) can attempt to inoculate themselves post-Kelly:

• The standard operating procedures (“SOP”) currently in place regarding service logs and incident reporting may have to be tweaked or completely changed to include more detailed information about the incident (a lot more documents will now have to be disclosed by these establishments during discovery).
• Once in place, the SOP must be strictly followed in order to give business enterprises a realistic opportunity to rebut plaintiffs’ prima facie case of negligence. The plaintiff’s prima facie case will be a lot easier to establish if the SOPs either were not implemented in the proper manner or were not implemented at all. (In Kelly none of the SOPs was followed)
• Employees must be trained regularly so as to avoid making careless and “precarious” statements in their reports, statements or testimony.
• The “zone of risk” within these enterprises (salad bars; soda fountains; condiment islands) must be inspected by employees on a more frequent basis and documented (including videotaping the area if necessary). This will force plaintiffs in certain premises liability cases to have to revert to the traditional and the more burdensome “time on the floor” notice evidence rather than the less stringent MOP standard. 3