For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
For The Defense, February 2012 - DRI Today
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
the known hazard posed by the grape display”);<br />
Ciminski v. Finn Corp., 13 Wash.<br />
App. at 823, 537 P.2d 850 (allowing the<br />
plaintiff to survive the defendant’s summary<br />
judgment motion by submitting “evidence<br />
that there tended to be spills in the<br />
area where she fell, and that the floor in<br />
this area was sometimes greasy”); Steinhorst<br />
v. H.C. Prange Co., supra, 48 Wis.<br />
2d at 684, 180 N.W.2d 525 (“unsafe condition<br />
here was substantially caused by the<br />
method used to display merchandise for<br />
sale,” namely, the self-serve shaving soap<br />
counter); Strack v. Great Atlantic & Pacific<br />
Tea Co., 35 Wis. 2d 51, 56, 150 N.W.2d 361<br />
(Wis. 1967) (finding that defendant’s liability<br />
rested on, among other things, “the<br />
manner in which the Italian prunes were<br />
displayed”); Buttrey Food Stores Division<br />
v. Coulson, 620 P.2d at 553 (“existence of<br />
water on the floor of the store premises<br />
was a reasonable probability because of<br />
the weather conditions”). So the rule will<br />
not apply in some situations because the<br />
hazardous condition was not related to any<br />
particular method of operation.<br />
In presenting a motion for a summary<br />
judgment on the grounds that a court<br />
should not apply the “mode of operation”<br />
rule, counsel for a retailer should attempt<br />
to distinguish the facts in the retailer’s<br />
particular case from cases in which courts<br />
have applied the “mode of operation” rule.<br />
As courts have for the most part limited<br />
the rule to situations involving “produce<br />
displays or other instances of unwrapped<br />
and/or ready to eat food that customers<br />
were encouraged to handle,” counsel needs<br />
to argue that the situation at hand does not<br />
involve a product that the customer was<br />
“encouraged to handle.” Fisher, 298 Conn.<br />
at 429. Overall, defense counsels for retailers<br />
should not feel that they cannot file<br />
summary judgment motions when plaintiffs’<br />
attorneys have based premises liability<br />
on “mode of operation” theories, although<br />
the rule clearly presents an additional hurdle<br />
and may make winning a summary<br />
judgment for defendants in cases involving<br />
falls more difficult to win.<br />
KEEP TRACK OF THIS<br />
AND ALL OF <strong>DRI</strong>’S<br />
CUTTING-EDGE CLE—<br />
Visit www.dri.org or<br />
call 312.795.1101 to<br />
register or for<br />
more information.<br />
RETAIL AND HOSPITALITY<br />
LITIGATION AND CLAIMS<br />
MANAGEMENT SEMINAR<br />
MAY 10–11, <strong>2012</strong><br />
SWISSÔTEL CHICAGO<br />
CHICAGO, ILLINOIS<br />
REASONS TO ATTEND<br />
Network with leaders from both the retail and hospitality industries<br />
Receive practical, innovative advice from both outside and in-house counsel that<br />
will impact your approach to the practice of law when representing the retail,<br />
hospitality and restaurant industries<br />
Hear from featured speakers, including the CEO of a major international claims<br />
manager, Sedgwick Inc.; in-house counsel with major retail companies; and a<br />
trial attorney who serves as an NFL referee—he will share his secrets of<br />
negotiating in the big leagues<br />
Obtain updates and best practices recommendations on the ever-changing<br />
Medicare requirements impacting workers’ compensation and liability litigation<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>February</strong> <strong>2012</strong> ■ 67