For The Defense, February 2012 - DRI Today

Retail and Hospitality
Slip and Fall in
Aisle Four
By Renee W. Dwyer
and Russell N. Jarem
Modern Premises
Liability Challenges
to Retail Operations
“Self-service” operations
in particular should
note the growing
number of states that are
adopting the heightened
“mode of operation”
standard of care.
In 2007, in Kelly v. Stop & Shop, 281 Conn. 768 (Conn.
2007), the Connecticut Supreme Court determined that
certain retail enterprises should bear the burden of rebutting
a plaintiff’s claim that the defendant was negligent,
and a plaintiff can satisfy a prima facie negligence
standard by presenting evidence
that the defendant’s mode of business operation
leads “to a foreseeable risk of injury”
and “the plaintiff’s injury was proximately
caused by an accident within the zone of
risk.” Id. at 791.
The court’s decision abrogated the traditional
premises liability standard under
which a plaintiff was required to establish
that a defendant had actual or constructive
notice of a specific hazard. In adopting the
mode of operation standard, Connecticut
joined a growing number of states that
have held certain retail establishments to
a greater standard of care than in the past
under traditional premises liability law.
The Approaches
Retailers face liability everyday from slips
and falls that people experience in their establishments.
“Self- service” operations need
to insulate themselves more vigilantly from
liability exposure than other retail establishments
due to the “mode of operation” rule
adopted by many states across the country.
As the Connecticut Supreme Court noted in
Kelley, “[t]here is… a distinct modern trend
favoring the rule, and it appears that most
courts that have considered the rule have adopted
it.” Kelly, 281 Conn. at 783.
Under traditional premises liability law,
a retail store owner has a duty to keep a
premises in a reasonably safe condition
for the benefit of store customers. In situations
involving falls, most courts require
a plaintiff to show that the condition causing
him or her to slip and fall existed long
enough so that the defendant should have
discovered it and should have remedied it.
In other words, the plaintiff is generally
required to plead and prove that the retailer
had actual or constructive knowledge of a
hazard. In these cases, a third party such
as a customer usually creates the hazard
that a plaintiff blames for his or her injury.
46 ■ For The Defense ■ February 2012
■ Renee W. Dwyer and Russell N. Jarem are partners of Gordon Muir & Foley in Hartford, Connecticut.
Ms. Dwyer, a member of DRI’s Retail and Hospitality Committee, routinely represents major retailers in the
defense of serious premises liability actions, as well as retail store false arrest claims, malicious prosecution
claims, and pharmacy liability claims. Mr. Jarem’s practice includes premises liability defense of landowners
and leaseholders for premises defects and retail operations. He is a member of the DRI Employment and
Labor Law Committee.