This appeal requires us to decide what facts and circumstances give rise to a plaintiff's right to recover under the mode of operation rule, an exception to the traditional premises liability doctrine, which dispenses with the requirement that a plaintiff prove that a business owner had actual or constructive notice of the specific unsafe condition giving rise to the plaintiff's injury. The defendant, Big Y Foods, Inc., appeals from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff, Leo A. Fisher III, for injuries he sustained when he slipped and fell in a supermarket owned and operated by the defendant.1 The defendant claims that the trial court improperly: (1) construed and applied Connecticut law on the mode of operation rule; (2) denied the defendant's motions for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict on the basis of its misconstruction of the law; and (3) confused the jury by instructing it on traditional premises liability principles because the plaintiff had abandoned any claim pursuant to those principles. We agree with the defendant's first two claims2 and, accordingly, reverse the judgment of the trial court.3
The following facts, which are not materially disputed, are relevant to the present appeal. On July 24, 2005, the plaintiff was shopping at the defendant's East Windsor supermarket. As he walked down aisle seven toward the front of the store, looking for an item on the shelving, he slipped and fell on a puddle of liquid, injuring his knee and shoulder. The plaintiff described the puddle as being about one and one-half feet in diameter, and the liquid as clear and syrupy. There was no broken container near the puddle and the source of the liquid was not apparent,4 but the plaintiff believed it was fruit cocktail syrup because the liquid contained colored particles and canned fruit was stocked in aisle seven.5 At the time of the plaintiff's fall, the puddle of liquid appeared undisturbed, without footprints or shopping cart track marks running through it.6
The defendant employs porters whose duties include sweeping the floor with dry mops four times throughout the day, beginning at 10 a.m., 1 p.m., 4 p.m. and 7 p.m. A videotape admitted into evidence at trial showed that, seven minutes prior to the plaintiff's fall, porter John Kelley had passed through aisle seven during the course of the 4 p.m. sweep, and a sweep log confirmed that the sweep had been performed.7 Kelley testified that he saw no spill at that time. Pursuant to the defendant's policy, porters are required to inspect each aisle as it is swept. The defendant's policy generally is to "inspect the store all the time."
The defendant operates its grocery stores in standard modern fashion. The East Windsor store is large, about the size of a football field. Customers are permitted to roam freely about the premises, remove items from the shelves and place them into their carts or return them to the shelves. The store's aisles have shelving on both sides and signs hanging overhead that alert customers to the location of various products. Michael Messer, a store supervisor, agreed at trial that, "[m]ore or less, Big Y is a self-service type store." He confirmed that, at times, customers cause spills or messes as a result of mishandling items.8 Messer testified, however, that spills similar to the one at issue were uncommon and that he would not expect the fruit products in aisle seven to break open if dropped. He acknowledged that a glass jar could break, but disagreed that it was foreseeable that a can or plastic cup could fall off a shelf and make a mess. No evidence was presented to the contrary.
On September 26, 2005, the plaintiff commenced this negligence action against the defendant. The operative complaint sounded in traditional premises liability9 and sought monetary damages. By the commencement of trial, however, this court had issued its decision in Kelly v. Stop & Shop, Inc., 281 Conn. 768, 791-92, 918 A.2d 249 (2007), recognizing for the first time the "mode of operation" rule, which provides an exception to the notice requirement of traditional premises liability doctrine.10 Relying on Kelly, the plaintiff abandoned his original theory of the case and proceeded solely on a mode of operation theory.11
At the close of the plaintiff's case, the defendant moved for a directed verdict. The defendant argued that the plaintiff had failed to present any evidence of the cause or origin of the spill, or that spills of that liquid were a regularly occurring hazardous condition. According to the defendant, the plaintiff could not make out a prima facie case under the mode of operation rule simply by showing that the defendant was a retail store that permitted customers to handle items and that, as a general matter, items sometimes fell to the floor and spilled. Rather, the defendant claimed, the plaintiff needed to prove the existence of some particular method of doing business within the store that created a heightened risk of danger to customers. The defendant argued that the plaintiff had failed to show that there was anything particularly hazardous about the operation of aisle seven that had created a zone of risk and had led to the spilled liquid. The trial court denied the defendant's motion, reasoning that this court's decision in Kelly permitted the plaintiff to proceed under the mode of operation rule.12
The case was submitted to the jury solely on the mode of operation theory. The court charged the jury using a standard instruction designed to reflect the rule articulated in Kelly. See Conn. Civil Jury Instructions 3.9-17, available at http://www.jud.ct.gov/JI/Civil/part3/3.9-17.htm (last visited September 7, 2010). In a blank space provided to identify the particular mode of operation at issue, the court inserted "self-service supermarket."13 The defendant excepted to the charge, arguing again that the plaintiff, to invoke the mode of operation rule, needed to show something more than that the defendant's supermarket generally was a self-service establishment. The jury thereafter returned a verdict in favor of the plaintiff, awarding $54,197.53 in total damages.14
Thereafter, the defendant filed motions to set aside the verdict and for judgment notwithstanding the verdict, arguing that it was against the law and the evidence presented at trial. The defendant argued again that the plaintiff had slipped on a substance of unknown origin, that there was no evidence that there was anything particularly hazardous about aisle seven or any other part of the store and that the only claimed negligence was that the defendant "operate[d] as a supermarket and allow[ed] customers to enter the store and take items off the shelves." Accordingly, the defendant argued, the evidence was insufficient to establish the defendant's negligence under a mode of operation theory.
The trial court denied both of the defendant's postverdict motions, reasoning that Kelly applied to all "typical [supermarket spill] cases." In a later issued memorandum of decision, the court "concluded [that] the mode of operation rule [was] generally available for premises liability claims in self-service stores."15 Moreover, according to the trial court, "[t]he jury could have reasonably concluded from the evidence that the liquid on which the plaintiff fell was spilled from a food container and dropped to the floor, as a result of the self-service nature of the defendant's operation. This spilled liquid would constitute an unsafe condition resulting from the self-service method of operation, requiring the mode of operation charge." This appeal followed.
The defendant claims first that the trial court improperly construed and applied Connecticut law on mode of operation. According to the defendant, the mode of operation rule is not triggered simply upon a showing that a retail establishment employs self-service marketing and spills generally occur, but rather, there must be some specific method of operation within the self-service retail establishment that creates a particular regularly occurring hazard and, therefore, a foreseeable risk of injury to customers. The defendant argues that to hold a retailer liable under the mode of operation exception simply because it is generally self-service would amount, in essence, to imposing strict liability upon business owners, effectively making them insurers of the safety of their customers. We agree that the mode of operation rule, as adopted in Connecticut, does not apply generally to all accidents caused by transitory hazards in self-service retail establishments, but rather, only to those accidents that result from particular hazards that occur regularly, or are inherently foreseeable, due to some specific method of operation employed on the premises.16
We begin with the applicable standard of review. "[T]he scope of our appellate review depends [on] the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 776, 918 A.2d 249. The parties do not disagree materially on the facts, but only on whether the mode of operation rule potentially could apply to those facts. According to the defendant, the evidence presented at trial implicated only traditional premises liability doctrine. Because the defendant claims that the trial court's rulings improperly permitted application of the wrong legal standard, our review is plenary. Id.
As an initial matter, we look to the language of the mode of operation rule as we stated it in Kelly. We summarized the plaintiff's burden of showing that the rule applies in a particular case as follows: "[A] plaintiff establishes a prima facie case of negligence 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." Id., at 791, 918 A.2d 249. Notably, we included the requirement that a plaintiff's injury occur within a "zone of risk." Id. If a "mode of operation" could be self-service merchandising itself, then an entire store necessarily would be rendered a "zone of risk" due to the readily established fact that merchandise, as a general matter, sometimes falls and breaks. Accordingly, the requirement of establishing that an injury occurred within some "zone of risk" essentially would be rendered superfluous.
We next consider the factual context of Kelly and the claims raised therein, as the scope of a rule necessarily is informed by the particulars of the case in which it is adopted.17 Moreover, an opinion must be read as a whole, without particular portions read in isolation, to discern the parameters of its holding. See Matza v. Matza, 226 Conn. 166, 187, 627 A.2d 414 (1993). In Kelly, the plaintiff had slipped and fallen on a piece of wet lettuce on the floor near what repeatedly was described as a "self-service salad bar" within the defendant's supermarket. Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 770, 918 A.2d 249. In the section of the opinion outlining the factual underpinnings of the plaintiff's claim, we included a detailed description of the salad bar and the surrounding area, the manner in which store patrons served themselves from the salad bar; id.; and the store manager's characterization of the salad bar area as "precarious" and requiring special attention because of the frequency with which food fell to the floor. Id., at 772, 918 A.2d 249.
When describing the procedural history of the case, we noted the plaintiff's allegation in her complaint that the dangerous condition of the wet lettuce "was the result of the defendant's method of displaying produce for consumption and that the defendant had failed to make reasonable inspections of the salad bar and the surrounding area in order to discover and remove that condition." (Emphasis added.) Id., at 774, 918 A.2d 249. Moreover, we observed that the plaintiff, when she urged the trial court to adopt the mode of operation rule, had argued that "the salad bar was operated in such a manner that it was foreseeable that customers would spill or drop food from the salad bar to the floor below, thereby creating a dangerous condition." (Emphasis added.) Id.
Finally, in agreeing with the plaintiff that this court should adopt the mode of operation rule, we agreed "that she [had] adduced sufficient evidence at trial to support a finding in her favor under that rule." Id., at 775, 918 A.2d 249. Specifically, there was testimony "that the area around the salad bar was `precarious' because customers regularly caused items from the salad bar to fall to the floor below. Indeed, because the defendant knew of the dangers associated with maintaining a self-service salad bar, the defendant had a policy of stationing an attendant at the salad bar for the purpose of keeping the area clean and safe. Moreover, 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 adequate to permit a finding that the salad bar created a foreseeable risk of danger to customers ... and that the plaintiff's fall had resulted from that dangerous condition." (Citation omitted; emphasis added.) Id., at 793, 918 A.2d 249.
Thus, in Kelly, we agreed with a claim that a particular method of operation within a generally self-service supermarket had created a regularly occurring hazardous condition, and our holding, which included the adoption of the mode of operation rule, necessarily corresponded to that claim.18 In concluding that the mode of operation rule could apply to the facts of the case, we emphasized evidence that related to the particular method of operating the salad bar and showed that the salad bar was hazardous.
We acknowledge that, in discussing the policy underpinnings of the mode of operation rule, we quoted broad language from cases of other jurisdictions which, read in isolation, might suggest that the rule applies generally throughout self-service retail establishments, because customers in such establishments must move throughout the premises and select items themselves, increasing the potential for spills, and they may be distracted by signs and merchandise displays and not notice such spills. We observed additionally that, in the modern retail environment, duties historically performed by employees now are undertaken by customers, resulting in certain cost savings to the business owner.19 See id., at 778, 781, 918 A.2d 249. The foregoing factors undoubtedly have influenced the decisions by many of our sister states to adopt the mode of operation rule or some variation thereof. A close examination of the cases cited in Kelly and additional, similar jurisprudence makes clear, however, that in most jurisdictions recognizing the mode of operation rule, it is not triggered by the mere presence of those factors, i.e., simply because the defendant is a retail store that allows customers to remove items from shelves and items sometimes are dropped, but only upon an additional showing that a more specific method of operation within a self-service retail environment gave rise to a foreseeable risk of a regularly occurring hazardous condition20 similar to the particular condition that caused the injury.21
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.22 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 v. Grand Union Stores, Inc., 47 N.J. 426, 429, 221 A.2d 513 (1966) (green beans sold from "open bins on a self-service basis"); Lingerfelt v. Winn-Dixie Texas, Inc., 645 P.2d 485, 486 (Okla.1982) (strawberries heaped in uncovered containers); Cobb v. Skaggs Cos., 661 P.2d 73, 74 (Okla.App.1982) (grapes from open display); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 294 (Tex.1983) (grape "directly in front of the [slanted] self-service grape bin");23 Canfield v. Albertsons, Inc., 841 P.2d 1224, 1225 (Utah App.1992) (lettuce leaf from open "`farmer's pack display'" in which wilted outer leaves were left intact for customers to remove and discard), cert. denied, 853 P.2d 897 (Utah 1993); Malaney v. Hannaford Bros. Co., 177 Vt. 123, 125, 861 A.2d 1069 (2004) (grapes from self-service display); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis.2d 51, 56, 150 N.W.2d 361 (1967) (Italian prune from pile on table in aisle). Some cases did not involve unwrapped food, but still focused on particular hazardous conditions that, the evidence showed, were likely to recur repetitively under the circumstances. See, e.g., F.W. Woolworth Co. v. Stokes, 191 So.2d 411, 416 (Miss. 1966) (rainwater regularly tracked inside store by customers on stormy day); Mahoney v. J.C. Penney Co., 71 N.M. 244, 249-52, 377 P.2d 663 (1962) (gum or sticky substance on entryway steps frequently littered with gum and trash); Ciminski v. Finn Corp., 13 Wn.App. 815, 817-18, 537 P.2d 850 (liquid on floor of self-service cafeteria in particular area where spills tended to occur when food trays were replenished or when customers dropped items), review denied, 86 Wn.2d 1002, 1975 WL 48182 (1975); Steinhorst v. H.C. Prange Co., 48 Wis.2d 679, 681, 684, 180 N.W.2d 525 (1970) (shaving cream from tester cans on self-service cosmetic counter where children were spotted playing); Buttrey Food Stores Division v. Coulson, 620 P.2d 549, 550-51 (Wyo.1980) (wet spot inside store entrance when melting snow and ice had accumulated in outside parking lot).24
In each of the foregoing cases, the court related the hazardous condition to the particular method of operation at issue, rather than attributing it solely to the general self-service nature of the business establishment. See Jasko v. F.W. Woolworth Co., supra, 177 Colo. at 420, 494 P.2d 839 ("defendant's method of selling pizza" created dangerous condition); Gump v. Wal-Mart Stores, Inc., supra, 93 Hawai`i at 418, 5 P.3d 407 (specifically limiting application of rule to circumstances of case, i.e., when "a commercial establishment, because of its mode of operation, has knowingly allowed the consumption of ready-to-eat food within its general shopping area"); McDonald v. Safeway Stores, Inc., supra, 109 Idaho at 307, 707 P.2d 416 (upholding trial court's denial of summary judgment to defendant on reasoning that "[t]he mode of operation of the ice cream demo on a very busy Good Friday, combined with the abnormally large crowds and other demos, in and of itself could constitute an act of negligence"); Jackson v. K-Mart Corp., supra, 251 Kan. at 702, 710-11, 840 P.2d 463 (questions for jury on remand were whether dangerous condition due to defendant's allowing customers to carry food and drink onto shopping floor was reasonably foreseeable and, if so, whether defendant had failed to exercise reasonable care); Dumont v. Shaw's Supermarkets, Inc., supra, 664 A.2d at 848 (holding mode of operation rule potentially applicable because defendant knew "that items with similar characteristics to the chocolate-covered peanuts created an increased hazard to customers"); Sprague v. Lucky Stores, Inc., supra, 109 Nev. at 251, 849 P.2d 320 (noting evidence of "virtually continual debris on the produce department floor"); Nisivoccia v. Glass Gardens, Inc., supra, 175 N.J. at 565, 818 A.2d 314 (method of packaging grapes made it "foreseeable ... that loose grapes would fall to the ground ... creating a dangerous condition"); Wollerman v. Grand Union Stores, Inc., supra, 47 N.J. at 429, 221 A.2d 513 ("When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate...." [Emphasis added.]); Mahoney v. J.C. Penney Co., supra, 71 N.M. at 260, 377 P.2d 663 (observing that defendant "knew the propensities of its customers to litter the floors and stairway with dangerous substances such as chewing gum"); Lingerfelt v. Winn-Dixie Texas, Inc., supra, 645 P.2d at 489 (key element of evidence was testimony of three employees that strawberries normally were covered with cellophane for safety reasons); Cobb v. Skaggs Cos., supra, 661 P.2d at 76-77 (jury could "find that [the defendant] created and maintained a foreseeable, unreasonable risk by displaying the grapes in such a manner without the protection of a table guard or other protective scheme"); Corbin v. Safeway Stores, Inc., supra, 648 S.W.2d at 294 (noting defendant's awareness "that the grape bin was an unusually hazardous and continual source of slippery material on which customers may fall"); Canfield v. Albertsons, Inc., supra, 841 P.2d at 1227 (when defendant "chose a method of displaying and offering lettuce for sale where it was expected that third parties would remove and discard the outer leaves from heads of lettuce they intended to purchase ... [i]t was reasonably foreseeable that ... some leaves would fall or be dropped on the floor by customers thereby creating a dangerous condition"); Malaney v. Hannaford Bros. Co., supra, 177 Vt. at 135, 861 A.2d 1069 (plaintiff had submitted sufficient evidence to avoid directed verdict on issue of "the reasonableness of the steps taken by [the] defendant to address the known hazard posed by the grape display"); Ciminski v. Finn Corp., supra, 13 Wash.App. at 823, 537 P.2d 850 (plaintiff survived summary judgment by submitting "evidence that there tended to be spills in the area where she fell, and that the floor in this area was sometimes greasy" [emphasis added]); Steinhorst v. H.C. Prange Co., supra, 48 Wis.2d at 684, 180 N.W.2d 525 ("unsafe condition here was substantially caused by the method used to display merchandise for sale," namely, the self-serve shaving soap counter); Strack v. Great Atlantic & Pacific Tea Co., supra, 35 Wis.2d at 56, 150 N.W.2d 361 (defendant's liability rested on, inter alia, "the manner in which the Italian prunes were displayed"); Buttrey Food Stores Division v. Coulson, supra, 620 P.2d at 553 ("existence of water on the floor of the store premises was a reasonable probability because of the weather conditions").
We acknowledge that, in a handful of the cases cited in Kelly, courts held that the mode of operation rule, or something analogous, was applicable generally to transitory hazardous conditions in self-service retail establishments.25 See Safeway Stores, Inc. v. Smith, 658 P.2d 255, 258 (Colo. 1983); Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 331 (Fla.2001); Golba v. Kohl's Dept. Store, Inc., 585 N.E.2d 14, 17 (Ind.App.1992); Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 436 (Ky.2003); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486, 488 (La.1976); Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778, 780 (Mo. 1989). In two of the foregoing jurisdictions, however, the courts' decisions subsequently were overruled legislatively, and in two others, the jurisprudential underpinnings for the decisions were weakened substantially by subsequent case law.26
When the question has presented itself directly, several courts have clarified that the mode of operation rule is not triggered simply upon a showing that a retail establishment, as a general matter, is self-service. For example, in Hembree v. Wal-Mart of Kansas, 29 Kan.App.2d 900, 903, 35 P.3d 925 (2001), the Court of Appeals of Kansas concluded that the mode of operation rule did not apply to a plaintiff's slip and fall at a department store in what was believed to be spilled Noxema skin cream, even though the store "was the type ... where shoppers were invited to come in and pick up, carry, examine, and purchase merchandise for themselves." Id., at 904, 35 P.3d 925. It concluded that "[t]he mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer interference. If the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law. A plaintiff could get to the jury in most cases simply by presenting proof that a store's customer could have conceivably produced the hazardous condition." (Internal quotation marks omitted.) Id., at 903, 35 P.3d 925. In short, "[t]he rule is not intended to uniformly cover all self-service situations." (Emphasis added.) Id., at 904, 35 P.3d 925.
In Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 401, 733 P.2d 283 (1987), the Supreme Court of Arizona stated that application of the mode of operation rule was not limited "to produce or pizza" and potentially was implicated by spilled creme rinse, but only if the plaintiff could show that it was reasonably foreseeable that creme rinse would be spilled on a regular basis. In other words, the mode of operation rule did not apply upon a showing that spills generally occurred due to customer activity and that the plaintiff slipped in a spilled substance. See also Contreras v. Walgreens Drug Store No. 3837, 214 Ariz. 137, 138, 140, 149 P.3d 761 (App.2006) (mode of operation rule inapplicable to plaintiff's fall on slimy blue substance in drugstore; although store manager had testified that spills generally happened twice weekly, no specific evidence was presented as to types, locations of spills).
The law on the scope of the mode of operation rule is perhaps most developed in the state of Washington. In Ciminski v. Finn Corp., supra, 13 Wash.App. at 818-19, 537 P.2d 850, the case in which the Washington courts first recognized the rule, the Court of Appeals discussed the shift in merchandising methods from individualized clerk-based assistance to a self-service model, how that shift was accompanied by a greater incidence of spilled substances and distracted customers prone to stepping in them and how it resulted in pecuniary benefit to the business owner, making reallocation of risk a matter of fairness.27 Subsequent Washington jurisprudence made clear, however, that although the foregoing circumstances were factors underlying the jurisdiction's decision to adopt the mode of operation rule, the modern, generally self-service method of merchandising itself was not a "mode of operation" that triggers the application of the rule and dispenses with traditional notice requirements.28
Specifically, in Pimentel v. Roundup Co., 100 Wn.2d 39, 49, 666 P.2d 888 (1983), the Supreme Court of Washington repudiated the Court of Appeals' language in Ciminski "suggest[ing] that the requirement of showing notice is eliminated as a matter of law for all self-service establishments," and instead held that "the requirement of showing notice will be eliminated only if the particular self-service operation of the defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable." (Emphasis added.) Id., at 50, 666 P.2d 888; see also White v. Safeway, Inc., Court of Appeals of Washington, Docket No. 35960-0-II, 2008 WL 501472, *2, 2008 Wash.App. LEXIS 456, *4 (February 26, 2008) ("[t]hat a business is a self-service operation is insufficient, standing alone, to bring a claim for negligence within the [mode of operation] exception"); Carlyle v. Safeway Stores, Inc., 78 Wn.App. 272, 277, 896 P.2d 750 (mode of operation rule "does not apply to the entire area of the store in which customers serve themselves"), review denied, 128 Wn.2d 1004, 907 P.2d 297 (1995).
Instead, the exception is meant to be a narrow one, and "applies only to those areas where risk of injury is continuous or foreseeably inherent in the nature of the business or mode of operation.... Thus a plaintiff who slips and falls in a grocery store cannot survive summary judgment by merely raising the inference that the substance causing her fall came from within the store; rather, the plaintiff must show that such spills were foreseeable in the specific area where she fell." (Citation omitted; emphasis added; internal quotation marks omitted.) White v. Safeway, Inc., supra, 2008 WL 501472, *2, 2008 Wash.App. LEXIS 501472, *5. Accordingly, in Carlyle v. Safeway Stores, Inc., supra, 78 Wash.App. at 277, 896 P.2d 750, the mode of operation rule did not apply to a leaking bottle of shampoo on the floor in the coffee section of a supermarket, because that type of spill was not shown to be reasonably foreseeable. See also Schmidt v. Coogan, 135 Wn.App. 605, 612, 145 P.3d 1216 (2006) (same), rev'd on other grounds, 162 Wn.2d 488, 173 P.3d 273 (2007); Linehan v. Safeway Stores, Inc., Washington Court of Appeals, Docket No. 49947-5-I, 2003 WL 352927 (February 18, 2003) (reversing trial court's denial of summary judgment to defendant when plaintiff, who had slipped on spilled sugar, failed to present "some evidence indicating that the spill was inherently foreseeable in the area where the injury occurred"); Ingersoll v. DeBartolo, Inc., 123 Wn.2d 649, 654-55, 869 P.2d 1014 (1994) (mode of operation rule inapplicable to spilled substance in common area of mall because plaintiff failed to show that vendors' methods of operation resulted in debris or substances on floor). Conversely, in White v. Safeway, Inc., supra, at *2-3, 2008 Wash.App. LEXIS at *6-8, the mode of operation rule was held applicable to chicken grease on the floor near a self-serve roasted chicken cart in a supermarket. Because the evidence showed that customers were invited to serve themselves, and the chickens were hot, greasy and packaged in unsealed containers, slippery spills in the vicinity of the cart were reasonably foreseeable.
We conclude by noting that a rule that presumptively established a storekeeper's negligence simply for having placed packaged items on shelves for customer selection and removal, without requiring any evidence that they were displayed in a particularly dangerous manner,29 would require us to ignore the modern day reality that all retail establishments operate in this manner and, given competitive considerations and customer demands, they have no other choice. The North Carolina Court of Appeals, in rejecting a plaintiff's claim that a movie theater's darkened state was a "mode of operation" that had made his trip and fall reasonably foreseeable, made the following salient observation: "[The] plaintiff's argument must fail—for the simple reasoning that, movie theatres could not do business at all if they could not be darkened." Kearns v. Horsley, 144 N.C. App. 200, 205, 552 S.E.2d 1, review denied, 354 N.C. 573, 559 S.E.2d 179 (2001). Consequently, the claimed "`mode of operation' is a theatre's only method of operation and as such, the theatre cannot be considered negligent [for employing it] but instead, its patrons must be considered to have assumed the risk in order to take part in the activity provided." (Emphasis in original.) Id. Similarly, a modern supermarket's only method of operation is to place items on shelves for customer selection and removal. Accordingly, a defendant cannot be considered negligent solely on the ground that it has employed that method.
When a "dangerous condition arises through means other than those reasonably anticipated from the mode of operation, the traditional burden of proving notice remains with the plaintiff." Gump v. Wal-Mart Stores, Inc., supra, 93 Hawai`i at 420, 5 P.3d 407; see also Jackson v. K-Mart Corp., supra, 251 Kan. at 710, 840 P.2d 463; Ingersoll v. DeBartolo, Inc., supra, 123 Wash.2d at 655, 869 P.2d 1014. Consequently, when a plaintiff injured by a transitory hazardous condition on the premises of a self-service retail establishment fails to show that a particular mode of operation made the condition occur regularly or rendered it inherently foreseeable, the plaintiff must proceed under traditional premises liability doctrine, i.e., he must show that the defendant had actual or constructive notice of the particular hazard at issue.30 On the basis of the foregoing analysis, we conclude that the trial court's construction of the mode of operation rule was improper.
The defendant claims next that the trial court improperly denied its motions for directed verdict, to set aside the verdict and for judgment notwithstanding the verdict on the basis of its misconstruction of the law concerning mode of operation. It argues that, because the plaintiff failed to present evidence to support application of the mode of operation theory, the only theory on which the plaintiff chose to try the case, the trial court should have granted its motions. We agree.
"The standards for appellate review of a directed verdict31 are well settled. Directed verdicts are not favored.... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion.... In reviewing the trial court's decision [to deny the defendant's motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff.... Although it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.... A directed verdict is justified if ... the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party." (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). Additionally, if, as a matter of law, the mode of operation rule was not implicated by the circumstances of this case, then the trial court was required to direct a verdict in the defendant's favor. See Krawczyk v. Stingle, 208 Conn. 239, 244, 543 A.2d 733 (1988); see also Lin v. National Railroad Passenger Corp., 277 Conn. 1, 6, 889 A.2d 798 (2006) ("[t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding" [internal quotation marks omitted]).
The evidence presented at trial, viewed in the light most favorable to the plaintiff, reasonably supported a finding that the plaintiff had slipped on fruit cocktail syrup that somehow had leaked from a product originating in the defendant's store. Although circumstantial, the evidence in this regard was substantial. Accordingly, we reject the defendant's argument that the plaintiff's failure to prove the precise cause or origin of the spill was fatal to his case. Nevertheless, because no evidence was presented to show that there was anything particularly dangerous about the defendant's method of offering packaged fruit products for sale, making their spillage inherently foreseeable or regularly occurring, the plaintiff failed to make out a prima facie case of negligence under the mode of operation rule. Because the jury could not properly find for the plaintiff on that theory, the only theory on which the plaintiff had proceeded, the trial court's refusal to direct a verdict for the defendant was improper.
The judgment is reversed and the case is remanded with direction to set aside the jury's verdict and to render judgment in favor of the defendant.
In this opinion VERTEFEUILLE, ZARELLA and McLACHLAN, Js., concurred.
PALMER, J., dissenting.
In Kelly v. Stop & Shop, Inc., 281 Conn. 768, 791-92, 918 A.2d 249 (2007), this court adopted the mode of operation rule, a rule of premises liability pursuant to which a business invitee, who is injured on the premises of a self-service business due to a dangerous condition that was a foreseeable consequence of the business' self-service mode of operation, may recover without proof that the business had actual or constructive notice of the dangerous condition if the business failed to take reasonable measures to discover and remove the dangerous condition.1 Although the majority does not say so, it overrules our holding in Kelly that the mode of operation rule applies to any area of a self-service business in which there exists a foreseeable risk that dangerous conditions will result from the self-service manner in which the business is operated. In particular, the majority concludes that the mode of operation rule applies only when "a more specific method of operation within a self-service retail environment [gives] rise to a foreseeable risk of a regularly occurring hazardous condition...." (Emphasis in original.) In other words, the majority reasons that a self-service mode of operation is not a mode of operation for purposes of the mode of operation rule. Thus, under the approach that the majority adopts, the rule does not apply to the entire premises of a self-service operation but, rather, only to discrete areas within a self-service store that are particularly or uniquely hazardous. Because fidelity to the policy concerns underlying the mode of operation rule that we adopted in Kelly requires that the rule be applied to all reasonably foreseeable hazards arising out of a business' self-service mode of operation, wherever on the premises these hazards occur, and because those concerns are no less significant now than they were when we decided Kelly just three years ago, I would conclude that the trial court properly instructed the jury in accordance with Kelly. Accordingly, I respectfully dissent.
The facts, which are set forth in the majority opinion, are undisputed and straightforward, and need not be repeated in detail. It is sufficient merely to highlight some of the key facts, viewed in the light most favorable to the plaintiff, that the jury reasonably could have found. At approximately 4 p.m. on July 24, 2005, the plaintiff, Leo A. Fisher III, was shopping in an aisle of a self-service supermarket in East Windsor owned by the defendant, Big Y Foods, Inc., when he slipped on a puddle of what appeared to be fruit cocktail syrup that was one and one-half feet in diameter and fell, injuring his right knee and left shoulder. Although the plaintiff was unable to establish the source of the puddle, both the store manager, Michael Messer, and one of the store's porters, John Kelley, acknowledged that customers sometimes create messes or spills as a result of moving and handling items. Messer also testified that the defendant had implemented certain policies to remedy these hazards.
On the day of the plaintiff's accident, Kelley was working as a porter. He testified that the defendant's policy required porters to complete four sweeps of the premises each day at 10 a.m. and 1, 4, and 7 p.m. The porters complete their sweeps of each aisle, which is six feet wide, with a dry dust mop or broom approximately three feet wide. Once each sweep was completed, store policy required the porter to complete a "sweep log." The sweep log from the day of the plaintiff's accident indicated that Kelley performed sweeps at 9:45 a.m., 1:15 p.m. and 3:50 p.m., and that each sweep took approximately fifteen minutes. He testified that, in performing his sweeps, he pushed the broom down the center of each aisle once and did not move the broom from the center unless he saw debris. He further testified that he made only one pass through each aisle, that is, he never swept the same aisle twice. Accordingly, Kelley conceded that there were portions of each aisle that did not get swept. Kelley also acknowledged that other porters typically take approximately thirty minutes to complete a sweep.2 Messer testified, like Kelley, that the broom that the porters used to complete each sweep is only three feet wide and that, in order to cover the entire aisle, a porter would have to make a second pass through the aisle. Messer added that store policy does not require porters to make a second pass through each aisle and that he was not surprised that Kelley made only one pass through each aisle.
The defendant's policy also required the completion of an incident report whenever an accident occurs. Messer acknowledged, however, that much of the incident report relating to the plaintiff's claim was incomplete. Messer did not explain why this was the case.
At the conclusion of trial, the court instructed the jury on the mode of operation rule,3 identifying the defendant's mode of operation as a "self-service supermarket."4 The trial court also submitted interrogatories to the jury. The first interrogatory provided in relevant part: "Do you find that the [p]laintiff has proven that the [defendant's] mode of operation gave rise to a foreseeable risk ... that the injury to the [p]laintiff was caused by an accident within that zone of risk and that the steps taken by the [d]efendant to prevent the accident were not reasonable under the circumstances?" The jury answered the first interrogatory in the affirmative. After finding that the defendant did not prove that the plaintiff had been contributorily negligent, the jury awarded damages to the plaintiff. This appeal followed.
My first point of disagreement with the majority stems from its interpretation of this court's decision in Kelly. Specifically, the majority contends that, in Kelly, this court implicitly concluded that the self-service mode of doing business is not a mode of operation for purposes of the mode of operation rule. In support of this assertion, the majority reasons that, because we concluded in Kelly that the rule applies when the plaintiff sustains an injury that is proximately caused by an accident within the zone of risk created by the mode of operation of the business, if self-service constitutes a mode of operation, "then an entire store necessarily would be rendered a `zone of risk' due to the readily established fact that merchandise, as a general matter, sometimes falls and breaks. Accordingly, the requirement of establishing that an injury occurred within some `zone of risk' essentially would be rendered superfluous." The majority further indicates that, because Kelly involved an accident near a salad bar, the scope of the rule announced in that case necessarily is limited to those facts. In support of this contention, the majority relies on the fact that, in Kelly, (1) we included a detailed description of the salad bar, its surrounding area and the way it operated when we described the facts of the case, (2) the plaintiff in Kelly alleged in her complaint that the mode of operation causing her injury was the supermarket's operation of the salad bar, and (3) we concluded that the salad bar created a foreseeable risk of danger to customers. As a result, the majority concludes in the present case that, "in Kelly, we agreed with a claim that a particular method of operation within a generally self-service supermarket had created a regularly occurring hazardous condition, and our holding, which included the adoption of the mode of operation rule, necessarily corresponded to that claim." (Emphasis in original.) For the reasons that follow, I disagree with the majority's contentions.
The majority's first contention, namely, that our inclusion of a "zone of risk" requirement would be rendered superfluous if the self-service operational method itself was deemed a mode of operation, fundamentally misapprehends the mode of operation rule that this court adopted in Kelly. The requirement that an accident occur within the zone of risk has no bearing on the question before this court, namely, whether self-service constitutes a mode of operation within the purview of the mode of operation rule. Instead, that requirement merely reflects the fact that not all hazardous conditions occurring on the premises of a self-service business arise out of the business' self-service mode of operation. In other words, a customer of a self-service business may be injured by a dangerous condition on the premises of that business that simply has nothing to do with the self-service nature of the business' operation. See, e.g., Overstreet v. Gibson Product Co., 558 S.W.2d 58, 61 (Tex.Civ.App.1977, writ ref'd) (grocery store owner not liable when patron bitten by rattlesnake on premises); Wiltse v. Albertson's, Inc., 116 Wn.2d 452, 454, 805 P.2d 793 (1991) (puddle of water resulting from hole in store's roof not related to self-service operation of store). Thus, our articulation of the rule in Kelly as requiring that the customer's injury be caused by a hazard within the "zone of risk" most certainly was not intended to suggest that self-service is not a mode of operation for purposes of the mode of operation rule. Rather, the zone of risk requirement, which is nothing more than a different way of expressing the foreseeability requirement, merely ensures that the dangerous condition that led to the injury was causally related to the business' self-service mode of operation, such that the dangerous condition and the resulting injury were a foreseeable risk of that mode of operation.5
The majority's second point, that is, that the breadth of the rule enunciated in Kelly necessarily is limited by the facts of that case, is similarly unavailing. The fact that the court in Kelly engaged in a factual analysis of the defendant's claims is wholly unremarkable; see, e.g., Singh v. Singh, 213 Conn. 637, 654, 569 A.2d 1112 (1990) ("[l]aw suits are not determined by a consideration of philosophy in the abstract, but by the application of legal principles to the facts of a particular case" [internal quotation marks omitted]); and provides no support for the majority's conclusion that self-service is not a mode of operation.6 Moreover, in Kelly, we framed the issue, as required, in accordance with the parties' claims. See Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 769-70, 918 A.2d 249. Even though Kelly involved a salad bar, the majority in the present case refers to no language in that decision that supports its interpretation that the rule applies only to salad bars and produce departments. To the contrary, this court's explanation of the rule and the public policies underlying it clearly indicate its broader application.7 As we stated in Kelly, "[t]he rule ... evolved in response to the proliferation of self-service retail establishments... [and] is rooted in the theory that traditional notice requirements are unfair and unnecessary in the self-service context." (Emphasis added.) Id., at 778, 918 A.2d 249. We further explained: "The modern self-service form of retail sales 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." (Emphasis added; internal quotation marks omitted.) Id. "[M]odern day supermarkets, self-service [markets], cafeterias, fast-food restaurants and other business premises should be aware of the potentially hazardous conditions that arise from the way in which they conduct their business. Indeed, the very operation of many of these types of establishments requires that the customers select merchandise from the store's displays, which are arranged to invite customers to focus on the displays and not on the floors.... In each of these cases, the nature of the defendant's business gives rise to a substantial risk of injury to customers from slip-and-fall accidents. . . ." (Emphasis added; internal quotation marks omitted.) Id. "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. But it is the very same risk and the risk has been created by the owner by his choice of mode of operation." (Emphasis added; internal quotation marks omitted.) Id., at 781, 918 A.2d 249; see also id., at 785, 918 A.2d 249 ("[the rule] frequently has been applied in cases involving slip and fall accidents in self-service establishments that were caused by the foreseeable behavior of other customers dropping or spilling merchandise on the floor" [internal quotation marks omitted]).8 It is abundantly clear from the foregoing language that the rule that we adopted in Kelly encompassed hazards throughout the store that represent foreseeable risks arising from the store's self-service mode of operation.9 Indeed, if we had intended, in Kelly, to adopt a rule of the kind that the majority adopts in the present case, we would have used much different language; at no point, however, did we even hint that our holding was limited to a particularly dangerous mode of operation within a self-service business.
We also would have engaged in a much different analysis. The analysis that we did employ in Kelly was predicated on our determination that "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." Id., at 786, 918 A.2d 249. We then identified the following four reasons why we had reached that conclusion, each of which applies with full force to a mode of operation rule that includes the entire premises of self-service operations, such as supermarkets and department stores.
First, we explained that self-service retailers create foreseeable hazards because, for their own pecuniary benefit, they rely on customers, who generally are less careful than employees, to handle and carry products, increasing the risk of droppage and spillage.10 Id. Second, we observed that "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." Id. In support of this assertion, we observed that, because self-service retailers are aware that their method of operation creates a foreseeable risk of harm to customers, the reason for placing the burden on the injured customer to prove actual or constructive notice, namely, the unfairness inherent in imposing liability on a retailer that has no reason to know of a particular hazard, simply is inapplicable. See id., at 786-87, 918 A.2d 249. Third, we explained that the requirement of actual or constructive notice imposes a nearly "insuperable" burden on injured customers; id., at 788, 918 A.2d 249; and one that is unfair considering that "premises owners are in a superior position to establish that they did or did not regularly maintain the premises in a safe condition and they are generally in a superior position to ascertain what occurred by making an immediate investigation, interviewing witnesses and taking photographs." Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 330 (Fla. 2001); accord Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 788, 918 A.2d 249. Finally, we relied on the fact that a mode of operation rule "encourages self-service businesses to exercise reasonable care in their dealings with customers . . . [by] assigning liability as accurately as possible to those parties that reasonably may foresee harm on their premises. . . . By contrast, a rule requiring proof that a self-service enterprise had actual or constructive notice of an unsafe, transitory condition caused by the foreseeable conduct of a customer would provide little incentive for such an enterprise to adopt and implement policies designed to prevent injuries stemming from that unsafe condition because actual or constructive notice frequently is so difficult to prove." (Citation omitted; internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., supra, at 789, 918 A.2d 249.
These reasons for recognizing a mode of operation rule for self-service enterprises are no less applicable today, in the context of the present case, than they were in Kelly. Indeed, in the present case, the jury found that the hazard that had caused the plaintiff's fall was a foreseeable result of the defendant's self-service mode of operation, a determination that was fully supported by the testimony of the porter, Kelley, who stated that he had seen customers create spills as a result of moving items from shelves, and by the testimony of the store manager, Messer, who acknowledged that customers caused items to fall to the floor and that, as a result, the defendant implemented policies to address such mishaps. In light of the foreseeable nature of the hazard in this case, it is both illogical and unfair to revert to the notice requirement that we expressly rejected in Kelly.
The majority's construction of the mode of operation rule, however, renders the rule inapplicable to most areas of self-service supermarkets. This result is manifestly inconsistent with the policies that animated our decision in Kelly. As we stated in Kelly: "[T]he mode of operation rule 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. . . ." (Internal quotation marks omitted.) Id. In particular, the rule offers an appropriate incentive for a self-service business to implement reasonable measures to address the foreseeable consequences of its self-service mode of operation. Id. Conversely, a rule requiring a customer to prove actual or constructive notice of an unsafe condition resulting from his or her foreseeable conduct would not necessarily encourage a business to implement measures aimed at preventing injuries caused by that unsafe condition because it often is difficult to prove such notice. Id.
The majority simply ignores the policy considerations on which we relied so heavily in Kelly and therefore fails to explain why the rationale that we articulated in Kelly does not lead inescapably to the conclusion that Kelly applies to the present case and all others like it. For example, the majority provides no explanation why it is fair or equitable to require the plaintiff in the present case to prove notice but not the plaintiff in Kelly. The majority also makes no attempt to explain why, in light of its acknowledgment that the mode of operation rule is not a rule of strict liability, it would be unfair to the defendant to apply that rule in the present case.11 I submit that the majority avoids these issues because it cannot address them and, at the same time, cannot assert that the extremely limited rule of premises liability that it adopts in the present case, which represents a reversion to this state's pre-Kelly premises law, is compatible with our analysis and holding in Kelly.12
The trial court, on the other hand, properly applied Kelly to the facts and circumstances of the present case. Specifically, the trial court rejected the defendant's argument that self-service is not a mode of operation within the meaning of the mode of operation rule, explaining: "[A]s I understand the Kelly decision, plaintiffs are allowed to make a mode of operation claim. They have to show that the mode of operation creates a hazardous risk, and the jury would be so instructed. And then also the question would be the reasonableness of the defendant's efforts to ameliorate that risk. So I think . . . the implication of Kelly is that these cases are going to go to juries on this theory, and the notice is out that [a] plaintiff will have to prove that the mode of operation creates a hazardous condition. And the theory here is that it's [a] self-service store [and] customers [are] taking things off the shelves [which] sometimes results in their dropping things and . . . the claim is that [that] creates a hazardous condition." In my view, this analysis properly reflects both our reasoning and holding in Kelly. Because the evidence supported the jury's verdict in favor of the plaintiff, I would affirm the judgment of the trial court, which it rendered in accordance with the jury's verdict.
I also disagree with the majority's assertion that a close examination of case law from other jurisdictions supports its conclusion that the mode of operation rule applies not upon a showing that a business is a self-service business but, rather, only when the plaintiff demonstrates that an aspect of the operation of that business is so inherently dangerous as to give rise to a materially greater risk of harm than that which may be foreseeable merely from the business' self-service method of operation.13 The majority reaches this conclusion because (1) most mode of operation cases involve produce displays, unwrapped food, ready to eat food that customers were encouraged to handle, or particularly hazardous conditions that were likely to occur repetitively under the circumstances, and (2) in those cases, "[each] court related the hazardous condition to the particular method of operation at issue, rather than attributing it solely to the general[ly] self-service nature of the business establishment." I disagree with the majority that these cases provide support for its assertion that self-service is not a mode of operation for purposes of the mode of operation rule.14
As the cases on which the majority relies make clear, slips and falls are more likely to occur in the vicinity of a produce display or a salad bar than in other areas of a supermarket. Indeed, common sense dictates that this would be the case. This fact, however, does not answer the question presented in this appeal, namely, whether a self-service method of operation, standing alone, is sufficient to trigger the applicability of the mode of operation rule, or whether something more is required. Notably, that question did not present itself in any of the cases on which the majority relies in its lengthy string of citations. To the contrary, in most of those cases, each plaintiff alleged that a more specific method of operation within a self-service retail environment gave rise to his or her injury, and, therefore, those courts had no occasion to consider whether the defendant's self-service operation triggered application of the rule. See, e.g., Jasko v. F.W. Woolworth Co., 177 Colo. 418, 420, 494 P.2d 839 (1972) (plaintiff contended that "[the] defendant's method of selling pizza was one [that] leads inescapably to such mishaps as her own"); Jackson v. K-Mart Corp., 251 Kan. 700, 704, 840 P.2d 463 (1992) (plaintiff asserted premises liability claim on basis of defendant's mode of operation, that is, allowing customers to take food and beverages purchased at instore cafeteria to other parts of store); Dumont v. Shaw's Supermarkets, Inc., 664 A.2d 846, 847 (Me.1995) (plaintiff asserted that defendant's mode of operation, namely, its display of unpackaged, bulk candy, led to her accident); F.W. Woolworth Co. v. Stokes, 191 So.2d 411, 412 (Miss.1966) ("[the] [p]laintiff's charge of negligence against the defendant, in substance, [was] that on the day she fell it had rained heavily for a considerable time, and the defendant knew or, by the exercise of reasonable care, should have known that customers would bring water into the store on their wearing apparel which would create a slippery condition on the floor hazardous to its customers"); Lingerfelt v. Winn-Dixie Texas, Inc., 645 P.2d 485, 486 (Okla. 1982) (plaintiff alleged that "[i]t was reasonably foreseeable that [a] dangerous condition was created by or might arise from the means used by a storekeeper to exhibit commodities for sale" [internal quotation marks omitted]); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983) ("[the plaintiff] alleged that [the defendant's] chosen self-service method for displaying green grapes in an open, slanted bin above a green linoleum tile floor resulted in an unreasonable risk of customers falling on grapes that have fallen or been knocked to the floor"); Canfield v. Albertsons, Inc., 841 P.2d 1224, 1225 (Utah App.1992) (plaintiff asserted that store's method of displaying lettuce caused her injury), cert. denied, 853 P.2d 897 (Utah 1993); Malaney v. Hannaford Bros. Co., 177 Vt. 123, 125-26, 861 A.2d 1069 (2004) (plaintiff asserted that grocery store's method of displaying grapes created known hazardous condition).
I also do not agree with the majority's reasoning that, because many mode of operation cases involve produce displays and the like, the rule applies only in such settings. Although it is true that more spills generally occur in produce sections than in other areas, I am unwilling to conclude that the self-service marketing approach employed in the produce department is so markedly different from that employed in other areas of a store that the mode of operation rule applies only to the former and not the latter. Indeed, the only relevant distinction between the self-service merchandising employed in the produce department and that in the rest of the store is, as the majority observes, the frequency with which accidents might occur.
By focusing on the frequency with which hazards arise and concluding that the mode of operation rule applies only to "particularly dangerous" modes of operation, the majority confuses the mode of operation rule's applicability with the plaintiff's ability to prevail on a particular claim. This is so because it is axiomatic that the rule applies when the store's self-service mode of operation made the development of a premise hazard foreseeable. See Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 791-92, 918 A.2d 249. When this principle is applied to the present case, it is clear that the fact that spills occur more regularly in the produce department than in the aisle in which the plaintiff fell says little about whether spills are, in fact, foreseeable in that aisle. Indeed, as the evidence adduced at trial and the jury's verdict in the present case indicated, the defendant's self-service mode of operation made it foreseeable that items would fall and spill anywhere in the store.
The frequency with which these hazards arise, however, is relevant in assessing whether the defendant adopted and implemented policies reasonably designed to remedy these foreseeable hazards and thus whether the plaintiff can prevail on his claim. Naturally, the area in which a spill occurred is a relevant fact in this analysis. Because spills and other incidents are likely to occur with greater frequency in a produce department than in other areas of a supermarket, the supermarket may need to adopt more exacting safety and precautionary measures in its produce department than in other areas of the store.
By making frequency the benchmark by which it is determined whether the mode of operation rule applies, rather than treating it as a factor to be considered in assessing whether a self-service store was negligent, the majority has replaced the rule with something else entirely, something that might be called a "particularly dangerous" mode of operation rule. Although other courts have adopted this approach,15 it is fundamentally inconsistent with the mode of operation rule that we adopted in Kelly. See part I of this opinion. Indeed, relying on the fundamental policies underlying the mode of operation rule, several other courts have applied the mode of operation rule to accidents similar to the one in the present case, that is, a relatively infrequent yet foreseeable premises hazard arising generally out of a store's self-service mode of operation.
For example, in Safeway Stores, Inc. v. Smith, 658 P.2d 255, 256 (Colo. 1983), the plaintiff, Charles L. Smith, Jr., slipped and fell on a substance that resembled hand lotion while walking down an aisle in a grocery store owned by the defendant, Safeway Stores, Inc. (Safeway). Smith brought a negligence action against Safeway, and a jury found in his favor. Id. After the trial court denied Safeway's motion for judgment notwithstanding the verdict or for a new trial, Safeway appealed, claiming that the trial court improperly had denied the motion because Smith had failed to prove that Safeway had actual or constructive notice of the dangerous condition. Id. The Colorado Court of Appeals affirmed, and Safeway appealed to the Colorado Supreme Court, which affirmed. Id., at 260.
The Colorado Supreme Court concluded that the mode of operation rule applied to the facts of Smith because, "[i]n a self-service grocery operation, the easy access to the merchandise often results in its spillage and breakage. This, along with the fact that a customer's attention understandably is focused on the items displayed rather than on the floor, creates a dangerous condition." (Internal quotation marks omitted.) Id., at 257. In other words, the court concluded, first, that Safeway's self-service mode of operation gave rise to a foreseeable risk of injury to customers and, second, that Smith's injury had been caused by an accident that was within the zone of risk. See id., at 257-58. Accordingly, it did not matter to the court that the slippery substance on which Smith slipped was not among the items shelved in the aisle in which the plaintiff was injured. See id., at 257 n. 3. Moreover, the court did not define the store's mode of operation narrowly; instead, the court focused on the ease with which items were moved and the fact that a customer's attention is focused away from the floor. Id., at 257. Thus, the court concluded that the rule applied due to the store's self-service method of operation. See id., at 257-58.
The facts of Sheil v. T.G. & Y. Stores Co., 781 S.W.2d 778 (Mo.1989), are similar. In Sheil, the plaintiff, Harold L. Sheil, was in the automotive section of a store belonging to the defendant, T.G. & Y. Stores Company (T.G. & Y.). Id., at 779. As Sheil was approaching the end of an aisle, he tripped over a small, heavy box, close to a floor display. Id. The evidence indicated that management knew that there was a stack of four or five boxes near where Sheil fell but was not aware of an isolated box in that area. Id., at 780. Sheil commenced an action, and a jury ultimately found in his favor. See id., at 779. T.G. & Y. then appealed, and the Missouri Court of Appeals reversed the trial court's judgment, concluding that Sheil had failed to establish that T.G. & Y. had notice of the box that had caused Sheil to fall. See id. On appeal to the Supreme Court of Missouri, that court reversed the judgment of the Missouri Court of Appeals. Id., at 783.
Commenting on the operation of a self-service business, the Missouri Supreme Court observed that "customers are invited to traverse the aisles and to handle the merchandise. [A] storeowner necessarily knows that customers may take merchandise into their hands and may then lay articles that no longer interest them down in the aisle. If the item is heavy, it is particularly likely that the customer may not put it back from where it came, possibly because of fear of disarranging other merchandise. The storeowner, therefore, must anticipate and must exercise due care to guard against dangers from articles left in the aisle." Id., at 780. The court concluded that "the jury could have found that [Sheil] was injured by a hazard that could have been expected in the store by reason of [the] method of merchandizing and that [T.G. & Y.] was derelict in its duty to take reasonable steps to protect customers against the dangers presented by merchandise in the aisle." Id., at 782; see also Golba v. Kohl's Dept. Store, Inc., 585 N.E.2d 14, 17 (Ind.App.1992) (summary judgment improper when plaintiff claimed to have slipped on small round object, likely BB, because department store "is charged with the knowledge that its method of operation may result in customers dropping objects onto the ground as they browse through the merchandise").16
The Kentucky Supreme Court reached the same conclusion in Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 435-37 (Ky.2003). In that case, the plaintiff, Barbara Ruth Lanier, slipped and fell on a puddle of clear liquid in an aisle in the grocery department of a store owned by the defendant, Wal-Mart Stores, Inc. (Wal-Mart). Id., at 433. Lanier claimed that "the spill should [have been] presumed attributable to Wal-Mart because of its self-service method of retail sales. She observe[d] that customers of all ages and abilities are encouraged by Wal-Mart to handle its merchandise and to move it about the store either by hand or by way of shopping baskets and carts that are provided by the store for that purpose. She argue[d] that this method of self-service sales facilitates the creation of hazardous conditions [and that] it is reasonably foreseeable [that those conditions] will result in harm to innocent customers." Id., at 434.
The Kentucky Supreme Court agreed, explaining that "[t]he modern self-service form of retail sales encourages the [business'] 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." Id., at 435. The court explained further that "[i]t is. . . common knowledge that modern merchandising techniques employed by self-service retail stores are specifically designed to attract a customer's attention to the merchandise on the shelves and, thus, away from any hazards that might be on the floor." Id., at 436. The court also stated, however, that, "[m]ost importantly. . . both logic and fairness mandate that, as between two apparently innocent parties, one being a business proprietor having a duty to maintain his premises in a reasonably safe condition for the use of his customers, and the other being the invited customer, the burden of proof with respect to the cause of an unsafe condition [on] the premises should be on the one with the duty to prevent it." Id. In line with this expression of policy, the Kentucky Supreme Court adopted the following rule: "To balance the competing principles of notice versus duty, the issues of causation and notice should be treated not as elements of the customer's case, but as affirmative defenses of the proprietor. The customer would retain the burden of proving that there was a foreign substance/object on the floor and that such [substance or object] was a substantial factor in causing his accident and injury. Such proof that the premises were unsafe would avoid a summary judgment or directed verdict and shift to the proprietor the burden of proving that his employees did not cause the substance/object to be on the floor and that it had been there for an insufficient length of time to have been discovered and removed or warned of by his employees." (Internal quotation marks omitted.) Id., at 435; see also Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486, 488 (La. 1976) (mode of operation rule properly applied to claim against grocery store arising from slip and fall on spilled olive oil because "the self-service grocery system requires customers to focus their attention on the shelves and to handle merchandise," and, "[w]hen it appears that a third person dropped the foreign substance, the store owner must establish that periodic inspections made and other protective measures taken were reasonable").17
It is thus apparent that the courts in each of the foregoing cases applied the mode of operation rule to transitory conditions in self-service retail establishments regardless of where in the store they happened to occur. Moreover, by applying the mode of operation rule in such circumstances, these courts have advanced all of the policy concerns that led this court to adopt the mode of operation rule in the first place. Accordingly, I see no reason why the mode of operation rule should not be applied in such circumstances.
The rule that the majority adopts no longer resembles the mode of operation rule that we adopted in Kelly. Under the new rule crafted by the majority, from today forward, customers injured while shopping at a large, self-service supermarket or department store will be required to prove that the store had actual or constructive notice of the hazard that caused the customer's injury. This step backward is not warranted by anything that the majority has said about Kelly specifically or the mode of operation rule generally. Indeed, I see no reason to retreat to a rule that dispenses with foresee-ability and applies only to those operations of a selfservice business that are deemed to be especially or inordinately dangerous. Because I continue to believe that our analysis and holding in Kelly were correct, and that they apply with equal force in the present case, I respectfully dissent.18