Conn. SC rejects slip-and-fall claim

Jessica M. Karmasek Sep. 21, 2010, 1:56pm


HARTFORD, Conn. - The Connecticut Supreme Court has reversed the judgment of a lower court in the case of a man who claimed he suffered injuries following his slip and fall inside a grocery store.

The Court's ruling, officially released Tuesday, focused on the plaintiff's right to recover under the mode of operation rule. The rule, an exception to the traditional premises liability doctrine, dispenses 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 in the case, Big Y Foods, Inc., appealed 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 allegedly he slipped and fell in a supermarket owned and operated by the defendant.

On July 24, 2005, Fisher was shopping at the East Windsor supermarket. As he walked down aisle seven toward the front of the store, looking for an item on the shelving, he says he slipped and fell on a puddle of liquid, injuring his knee and shoulder. Fisher described the puddle as being 1 to 2 feet in diameter and the liquid as being clear and syrupy.

Fisher believed it was fruit cocktail syrup because the liquid contained colored particles and canned fruit was stocked in that aisle. However, there was no broken container near the puddle.

The grocery store employs porters whose duties include sweeping the floor with dry mops four times throughout the day, 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 Fisher's fall, one of the store's porters, John Kelley, had passed through the aisle during a 4 p.m. sweep. A sweep log confirmed the time.

Kelley testified he saw no spill at the time. According to store policy, porters are required to inspect each aisle as it is swept.

Months after the incident, in September 2005, Fisher filed a suit against the grocery store. The operative complaint was founded in traditional premises liability and sought monetary damages.

However, by the start of trial, the state's high court had issued its decision Kelly v. Stop & Shop, Inc., recognizing for the first time the mode of operation rule.

Relying on the decision, Fisher then abandoned his original theory of the case and proceeded solely on a mode of operation theory.

At the close of the plaintiff's case, the defendant, Big Y Foods, moved for a directed verdict. The store argued Fisher 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.

The trial court denied the defendant's motion, reasoning that the Court's decision in Kelly permitted the plaintiff to proceed under the mode of operation rule.

The case was submitted to the jury solely on the mode of operation theory. The jury returned a verdict in favor of the plaintiff, awarding $54,197.53 in total damages.

The store 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 trial court denied both of the defendant's post-verdict motions. The appeal before the Supreme Court followed.

The store claims the trial court improperly construed and applied Connecticut law on the mode of operation rule; 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 confused the jury by instructing it on traditional premises liability principles because the plaintiff had abandoned any claim pursuant to those principles.

Chief Justice Chase T. Rogers, who authored the Court's opinion, said the Court agreed with the defendant's first two claims and accordingly reversed the judgment of the trial court.

"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," the Court wrote.

The Court said the evidence presented at trial, viewed in the light most favorable to the plaintiff, reasonably supported a finding that Fisher 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," Rogers wrote.

Accordingly, the Court rejected the defendant's argument that the plaintiff's failure to prove the precise cause or origin of the spill was fatal to his cause.

But because no evidence was presented to show there was anything particularly dangerous about the defendant's method of offering packaged fruit products for sale, the plaintiff failed to make out a prima facie case of negligence under the mode of operation rule, the Court said.

"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 Court concluded.

The Court ordered the judgment reversed and the case is to be remanded with direction to set aside the jury's verdict and to render judgment in favor of the defendant.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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