For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
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only if the owner could reasonably foresee<br />
that the dangerous condition could occur,<br />
resulting from the owner’s chosen mode<br />
of operation, and the owner took inadequate<br />
steps to forestall resulting injuries.”<br />
Sheehan, 448 Mass. at 791–792. And “[a]<br />
plaintiff would still be required to present<br />
evidence to supporting his or her case and<br />
to bear the burden of persuading the trier<br />
of fact that the defendant acted unreasonably<br />
in the circumstances.” Id. at 786–787.<br />
So whether an owner exercised reasonable<br />
care in making an establishment safe<br />
for invitees is a question of fact. A jury in<br />
such a case will need to decide whether<br />
the retailer took all necessary reasonable<br />
precautions commensurate with the risks<br />
inherent in a self- service method of operation<br />
to protect individuals from such foreseeable<br />
risks, and counsel for a retailer<br />
needs to present evidence to support the<br />
position that the retailer did, in fact, take<br />
necessary precautions.<br />
How and When Courts<br />
Generally Apply the Rule<br />
A court generally will take a “mode of operation”<br />
approach in a situation in which<br />
a retailer could reasonably anticipate that<br />
hazardous conditions would arise regularly.<br />
As the Arizona Supreme Court explained,<br />
[t]he mode- of- operation rule is of limited<br />
application because nearly every<br />
business enterprise produces some risk<br />
of customer interference. If the modeof-<br />
operation rule applied whenever customer<br />
interference was conceivable, the<br />
rule would engulf the remainder of negligence<br />
law. A plaintiff could get to the<br />
jury in most cases simply by presenting<br />
proof that a store’s customer could<br />
have conceivably produced the hazardous<br />
condition.<br />
Chiara v. Fry’s Food Stores of Ariz., Inc.,<br />
152 Ariz. 398, 400–401, 733 P.2d 283 (Ariz.<br />
1987).<br />
<strong>The</strong> Arizona Supreme Court further<br />
explained that a particular mode of<br />
operation only falls within the “modeof-<br />
operation” rule when a business can<br />
reasonably anticipate that hazardous conditions<br />
will regularly arise. Id. A plaintiff<br />
must generally demonstrate the foreseeability<br />
of third-party interference before a<br />
court will dispense with traditional premises<br />
liability notice requirements.<br />
As discussed by the Supreme Court of<br />
Arizona, many cases applying “mode- ofoperation”<br />
rule have involved open food displays.<br />
Id. (citing Bloom v. Fry’s Food Stores,<br />
Inc., 636 P.2d 1229 (Ariz. Ct. App. 1981)<br />
(grapes); Tom v. S.S. Kresge Co., 633 P.2d 439<br />
(Ariz. Ct. App. 1981) (soft drinks)); Rhodes<br />
v. El Rancho Markets, 9 Ariz. App. 576, 454<br />
P.2d 1016 (Ariz. Ct. App. 1969) (lettuce);<br />
Jasko v. F.W. Woolworth Co., 177 Colo. 418,<br />
494 P.2d 839 (Colo. 1972) (pizza sold by the<br />
slice); Gonzales v. Winn-Dixie Louisiana,<br />
Inc., 326 So. 2d 486 (La. 1976) (glass bottle<br />
of olive oil); Bozza v. Vornado, Inc., 42 N.J.<br />
355, 200 A.2d 777 (N.J. 1964) (self- service<br />
cafeteria); Ciminski v. Finn Corp., 13 Wash.<br />
App. 815, 537 P.2d 850 (Wash. Ct. App. 1975)<br />
(self-service cafeteria).<br />
In Connecticut, when a court first recognized<br />
the rule in Kelly v. Stop & Shop, Inc.,<br />
281 Conn. 768, 791–92 (Conn. 2007), the<br />
court limited the rule by using the phrase<br />
“zone of risk.” Specifically, the court held<br />
that a plaintiff can establishes a prima<br />
facie case of negligence by presenting evidence<br />
that the “mode of operation” of the<br />
defendant’s business gives rise to a foreseeable<br />
risk of injury to customers and that the<br />
plaintiff’s injury was proximately caused by<br />
an accident within the “zone of risk.” Id.<br />
at 791. <strong>The</strong> court went on to state that “the<br />
prima facie case may be defeated if the defendant<br />
produces evidence that it took reasonable<br />
measures to prevent accidents such<br />
as the one that caused the plaintiff’s injury,<br />
and the plaintiff fails to establish that those<br />
measures did not constitute reasonable<br />
care under the circumstances.” Id. at 791–<br />
92. As such, under the “mode of operation”<br />
analysis, retailers do have defenses.<br />
<strong>Defense</strong> counsel, must, however, present<br />
evidence to show that the retailer (1) had<br />
adequate policies and procedures in place,<br />
and (2) the retailer’s employees followed<br />
those policies and procedures.<br />
Three years after Kelly, however, the<br />
Connecticut Supreme Court in Fisher v. Big<br />
Y Foods, 298 Conn. 414, 3 A. 3d 919 (Conn.<br />
2010), further explained the limitations of<br />
the rule when it stated that<br />
[t]he mode of operation rule, as adopted<br />
in Connecticut, does not apply generally<br />
to all accidents caused by transitory<br />
hazards in self- service retail establishments,<br />
but rather, only to those accidents<br />
that result from particular hazards that<br />
occur regularly, or are inherently foreseeable,<br />
due to some specific method of<br />
operation employed on the premises.<br />
Id. at 423. (emphasis added).<br />
<strong>The</strong> court observed that if self- service<br />
merchandising constituted the problematic<br />
“mode of operation,” then Kelly would render<br />
an entire store a “zone of risk” because<br />
merchandise can fall and break anywhere<br />
Counsel for a retailer<br />
needs to present evidence<br />
to support the position that<br />
the retailer did, in fact, take<br />
necessary precautions.<br />
in a store. Id. at 424. Such a construction<br />
would render the “zone of risk” analysis<br />
superfluous.<br />
Courts Do Apply the Rule to Retailing<br />
Other than Self-Service Retailing<br />
Attorneys for retailers as defendants<br />
defending claims brought under the broad<br />
premise liability theories described above<br />
have tried to argue that the “mode of operation”<br />
rule applies solely to self- service grocery<br />
stores and not to fast-food restaurants,<br />
nightclubs, or other businesses such as<br />
banks. Attorneys for injured plaintiffs will<br />
certainly attempt to argue that the “mode<br />
of operation rule” has applicability to falls<br />
that occur in all types of retail, service, and<br />
recreational establishments such as doctor’s<br />
offices, theaters, bowling alleys, clothing<br />
stores, and coffee shops.<br />
While the courts have acknowledged that<br />
the “mode of operation” rule does not apply<br />
to all negligence cases or all premises liability<br />
cases, these same courts, under the<br />
right factual scenario, have extended the<br />
application of this rule to retail locations<br />
other than self- service grocery stores. <strong>For</strong><br />
example, the United States District Court of<br />
Rhode Island, interpreting the law of Massachusetts,<br />
found that nothing in Massachusetts’<br />
seminal case, Sheehan v. Roche Bros.<br />
Supermarkets, Inc., 863 N.E.2d 1276 (Mass.<br />
2007), limited the application of the rule to<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>February</strong> <strong>2012</strong> ■ 49