For The Defense, February 2012 - DRI Today

only if the owner could reasonably foresee
that the dangerous condition could occur,
resulting from the owner’s chosen mode
of operation, and the owner took inadequate
steps to forestall resulting injuries.”
Sheehan, 448 Mass. at 791–792. And “[a]
plaintiff would still be required to present
evidence to supporting his or her case and
to bear the burden of persuading the trier
of fact that the defendant acted unreasonably
in the circumstances.” Id. at 786–787.
So whether an owner exercised reasonable
care in making an establishment safe
for invitees is a question of fact. A jury in
such a case will need to decide whether
the retailer took all necessary reasonable
precautions commensurate with the risks
inherent in a self- service method of operation
to protect individuals from such foreseeable
risks, and counsel for a retailer
needs to present evidence to support the
position that the retailer did, in fact, take
necessary precautions.
How and When Courts
Generally Apply the Rule
A court generally will take a “mode of operation”
approach in a situation in which
a retailer could reasonably anticipate that
hazardous conditions would arise regularly.
As the Arizona Supreme Court explained,
[t]he mode- of- operation rule is of limited
application because nearly every
business enterprise produces some risk
of customer interference. If the modeof-
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.
Chiara v. Fry’s Food Stores of Ariz., Inc.,
152 Ariz. 398, 400–401, 733 P.2d 283 (Ariz.
1987).
The Arizona Supreme Court further
explained that a particular mode of
operation only falls within the “modeof-
operation” rule when a business can
reasonably anticipate that hazardous conditions
will regularly arise. Id. A plaintiff
must generally demonstrate the foreseeability
of third-party interference before a
court will dispense with traditional premises
liability notice requirements.
As discussed by the Supreme Court of
Arizona, many cases applying “mode- ofoperation”
rule have involved open food displays.
Id. (citing Bloom v. Fry’s Food Stores,
Inc., 636 P.2d 1229 (Ariz. Ct. App. 1981)
(grapes); Tom v. S.S. Kresge Co., 633 P.2d 439
(Ariz. Ct. App. 1981) (soft drinks)); Rhodes
v. El Rancho Markets, 9 Ariz. App. 576, 454
P.2d 1016 (Ariz. Ct. App. 1969) (lettuce);
Jasko v. F.W. Woolworth Co., 177 Colo. 418,
494 P.2d 839 (Colo. 1972) (pizza sold by the
slice); Gonzales v. Winn-Dixie Louisiana,
Inc., 326 So. 2d 486 (La. 1976) (glass bottle
of olive oil); Bozza v. Vornado, Inc., 42 N.J.
355, 200 A.2d 777 (N.J. 1964) (self- service
cafeteria); Ciminski v. Finn Corp., 13 Wash.
App. 815, 537 P.2d 850 (Wash. Ct. App. 1975)
(self-service cafeteria).
In Connecticut, when a court first recognized
the rule in Kelly v. Stop & Shop, Inc.,
281 Conn. 768, 791–92 (Conn. 2007), the
court limited the rule by using the phrase
“zone of risk.” Specifically, the court held
that a plaintiff can establishes a prima
facie case of negligence by presenting 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. The court went on to state that “the
prima facie case may be defeated if the defendant
produces evidence that it took reasonable
measures to prevent accidents such
as the one that caused the plaintiff’s injury,
and the plaintiff fails to establish that those
measures did not constitute reasonable
care under the circumstances.” Id. at 791–
92. As such, under the “mode of operation”
analysis, retailers do have defenses.
Defense counsel, must, however, present
evidence to show that the retailer (1) had
adequate policies and procedures in place,
and (2) the retailer’s employees followed
those policies and procedures.
Three years after Kelly, however, the
Connecticut Supreme Court in Fisher v. Big
Y Foods, 298 Conn. 414, 3 A. 3d 919 (Conn.
2010), further explained the limitations of
the rule when it stated that
[t]he 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.
Id. at 423. (emphasis added).
The court observed that if self- service
merchandising constituted the problematic
“mode of operation,” then Kelly would render
an entire store a “zone of risk” because
merchandise can fall and break anywhere
Counsel for a retailer
needs to present evidence
to support the position that
the retailer did, in fact, take
necessary precautions.
in a store. Id. at 424. Such a construction
would render the “zone of risk” analysis
superfluous.
Courts Do Apply the Rule to Retailing
Other than Self-Service Retailing
Attorneys for retailers as defendants
defending claims brought under the broad
premise liability theories described above
have tried to argue that the “mode of operation”
rule applies solely to self- service grocery
stores and not to fast-food restaurants,
nightclubs, or other businesses such as
banks. Attorneys for injured plaintiffs will
certainly attempt to argue that the “mode
of operation rule” has applicability to falls
that occur in all types of retail, service, and
recreational establishments such as doctor’s
offices, theaters, bowling alleys, clothing
stores, and coffee shops.
While the courts have acknowledged that
the “mode of operation” rule does not apply
to all negligence cases or all premises liability
cases, these same courts, under the
right factual scenario, have extended the
application of this rule to retail locations
other than self- service grocery stores. For
example, the United States District Court of
Rhode Island, interpreting the law of Massachusetts,
found that nothing in Massachusetts’
seminal case, Sheehan v. Roche Bros.
Supermarkets, Inc., 863 N.E.2d 1276 (Mass.
2007), limited the application of the rule to
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