Kelly v. Stop & Shop, Inc. - Has the Supreme Court Abolished The
Long Standing Rule of Actual or Constructive Notice in Premises Liability Cases?
By Paul M. Cramer
One of the most common scenarios a plaintiff or defense lawyer encounters in premises liability personal injury cases is the issue of liability, more particularly, actual or constructive notice of a claimed defect. From a defense perspective, when a case comes to the office involving a client who is being sued by a customer for personal injuries sustained during a slip and fall in the client's store, knowledgeable defense counsel immediately recognizes a possible complete defense before even reading the file; that is, lack of notice, either actual or constructive. Such notice must be proven in order for the plaintiff to recover damages. "Typically, for a plaintiff to recover for the breach of a duty owed to him as a business invitee it is incumbent upon him to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused his injury or constructive notice of it ... The notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely conditions naturally productive of that defect even though subsequently in fact producing it ... In the absence of allegations and proof of any facts that would give rise to an enhanced duty ... a defendant is held to the duty of protecting its business invitees from known, foreseeable dangers".
Conversely, many plaintiffs attorneys faced with the issue of representing a client who is seriously injured in a store or retail establishment find proving notice to be a herculean task, involving time, money, and expense that may dwarf the anticipated fee on such a case.
Armed with such a defense, many businesses defend these cases vigorously, arguing that there was no notice, either actual or constructive.
In Connecticut, the land of steady habits, this has long been the law of the land. However, in its recent decision in Kelly v. Stop & Shop, 281 Conn. 768 (2007), the Supreme Court has apparently turned the well established standard of care in such cases upside down. Or have they? First we must review the court's decision in detail.
Kelly v. Stop & Shop - Facts and Holding
In Kelly, the named plaintiff slipped and fell next to a self-service salad bar operated by the defendant Stop & Shop, Inc. while she was preparing a salad. Plaintiff brought an action against Stop & Shop to recover damages for her injuries. The salad bar, which contained no railings or ledges on which a patron could place a tray or salad container, was surrounded on both sides by a narrow floor runner that covered a portion of the tile or linoleum floor. Patrons typically would stand and hold their containers over the floor area while serving themselves from the salad bar. After plaintiff fell, she noticed a wet piece of lettuce on the side of her shoe but had not observed any food or other substance on the floor near the salad bar before she fell. Plaintiff alleged, inter alia, that the defendant and its employees negligently allowed wet pieces of lettuce to accumulate on the floor next to the salad bar, creating a dangerous condition that caused her to fall. In a courtside trial, the court observed that plaintiff did not allege that the defendant had actual notice of the pieces of lettuce. The trial court then concluded that because plaintiff had failed to establish how long the pieces of lettuce had been on the floor, the evidence was inadequate to establish that the defendant had constructive notice of the allegedly dangerous condition, and, therefore, the defendant was entitled to judgment on that basis.
Plaintiff appealed, challenging the trial court's determination that she was required to prove that the lettuce had been on the floor long enough to charge the defendant with constructive notice of its presence. Plaintiff further asserted that the trial court improperly had declined to consider her claim under the "mode of operation rule" which allows a business invitee to recover for an injury sustained as a result of a dangerous condition on the premises without establishing that the business had actual or constructive notice of that condition, if the business' chosen method of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it.
The Supreme Court held that in cases involving premises liability claims brought by a business invitee seeking compensation for injuries sustained as a result of an allegedly unsafe condition that is a foreseeable consequence of the business owner's self-service method of operation, the business invitee need not prove actual or constructive notice of the allegedly unsafe condition in order to recover damages. The Court remanded the case for a new trial based on the fact that a fact finder reasonably could have concluded that plaintiff had established a prima facie case of negligence, that is, that the defendant's method of operating the salad bar gave rise to a foreseeable risk of injury to its customers, and that the plaintiff's injuries were proximately caused by an accident within the zone of risk and that the accident resulted from the defendant's failure to take adequate measures in connection with the operation of the salad bar.
On its face, the Court's holding appears to state that the plaintiff, business invitee, need not prove actual or constructive notice of the allegedly unsafe condition in order to recover damages. This appears to turn upside down the longstanding rule of law with respect to premises liability cases.
More specifically, the Court stated the following: "If the plaintiff however, alleges an affirmative act of negligence, that is, that the defendant's conduct created the unsafe condition, proof of notice is not necessary ... that is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof." Thus, while not expressly holding that a plaintiff does not have to prove notice, the Court states that notice is inferred.
The Court expressly adopted the "mode of operation rule" which allows a customer injured due to a condition inherent in the way a store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition. In effect, the Court is telling all self-service retail establishments to be on notice, because the very nature of the business creates dangerous hazards of which the business is presumed to be aware. Thus, all such businesses are deemed to have actual notice of the hazardous condition, whatever it may be.
This rule, which evolved in response to the proliferation of self-service retail establishments, is rooted in the theory that traditional notice requirements are unfair and unnecessary in the self-service context. "The modern self-service form of retail sales encourages patrons to obtain for themselves from shelves and containers the items they wish to purchase and to move them from one part of the store to another in baskets and shopping carts as they continue to shop for other items, thus increasing the risk of droppage and spillage." The Court went on to state "[i]t is also common knowledge that modern merchandising techniques employed by self-service retail stores are specifically designed to attract a customer's attention to the merchandise on the shelves and, thus, away from any hazards that might be on the floor". Further "modern day supermarkets, self-service marts, cafeterias, fast food restaurants and other business premises should be aware of the potentially hazardous conditions that arise from the way in which they conduct their business. Indeed, the very operation of many of these types of establishments requires that the customer select merchandise directly from the store's displays, which are arranged to invite customers to focus on their displays and not on the floors .... In each of these cases the nature of the defendant's business gives rise to a substantial risk of injury to customers from slip and fall accidents ..."
The Court further held that whether a self-service business is deemed to have constructive or actual notice of hazards that occur regularly due to the fact that its customers are expected to serve themselves, the fundamental rationale underlying the rule is the same: Because the hazard is a foreseeable consequence of the manner in which the business is operated, the business is responsible for implementing reasonable measures to discover and remedy the hazard.
Indeed, the Supreme Court in Kelly analyzed the Meek case as a basis for applying the mode of operation rule. In Meek, the named plaintiff, Jeffrey Meek was injured when two boxes containing aluminum folding camp tables fell on him while he was shopping at a Wal-Mart store in Waterford. Meek brought an action against Wal-Mart Stores, Inc. ("Wal-Mart") and certain of its employees, claiming, inter alia, that Wal-Mart or its employees negligently had failed to secure the tables to the shelf on which they were displayed. A jury returned a verdict in favor of Meek and Wal-Mart appealed. On appeal, Wal-Mart argued that the evidence was inadequate to establish that the manner in which the tables had been stacked for display constituted a dangerous condition. In particular, Wal-Mart maintained that it could not be held responsible for the accident because the evidence indicated that another customer had caused the tables to be moved into a position in which they were vulnerable to toppling.
The Appellate Court rejected this claim, concluding that the evidence was sufficient to permit a finding that Wal-Mart and its employees had been negligent in stacking the boxes in the manner they did because it was foreseeable that the boxes could be dislodged by customers with only minimal inspection or handling. In reaching its conclusion, the Appellate Court noted that when a business invitee alleges that her injuries were caused by an unsafe condition created by the business itself, proof that the business had actual or constructive notice of that unsafe condition is not necessary because in such circumstances, knowledge of the condition reasonably may be inferred.
The Kelly Court noted that the Appellate Court in Meek did not expressly adopt the mode of operation rule, but the analysis and reasoning employed in that case is no different from the analysis and reasoning that the Court would have used if it explicitly had adopted the mode of operation rule. Consequently, the Supreme Court in Kelly agreed that Meek lends considerable support to her contention that she was entitled to consideration of her claim under the "mode of operation rule."
In Kelly , the Court gave four specific reasons why the "mode of operation rule" provides the most fair and equitable approach to the adjudication of premises liability claims brought by business invitees seeking compensation for injuries arising out of a business owners self-service method of operation.
First, in a self-service operation an owner has for his pecuniary benefit required customers to perform the task previously carried out by employees.
Second, the essential premise of the rule requiring a business invitee to prove actual or constructive notice of the unsafe condition is incompatible with the self-service method of operation. Self-service businesses are aware that some customers will be injured due to the conduct of other customers because such injuries are a likely and therefore foreseeable consequence of the self-service method of operation.
Third, "the requirement of actual or constructive notice places a difficult, and frequently insuperable-burden on injured customers to establish when the unsafe condition arose. An injured customer is often at a decided disadvantage in determining what has happened. The fall victim may be dazed, helpless and friendless, unable to interview bystanders or to observe the scene carefully. The store on the other hand is able to make an immediate investigation, interviewing witnesses and diagramming the scene. Relative availability of evidence to the parties is a circumstance to be considered in determining what should be required for making a submissable case."
Fourth, the mode of operation rule is most consistent with both the general rule that every person has a duty to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct, whether that conduct consists of acts of co-mission or omission. "More specifically the rule encourages self-service businesses to exercise reasonable care in their dealings with customers assigning liability as accurately as possible to those parties that reasonably may foresee harm on their premises." By contrast, a rule requiring proof that a self-service enterprise had actual or constructive notice of an unsafe, transitory condition caused by the foreseeable conduct of a customer would provide little incentive for such an enterprise to adopt and implement policies designed to prevent injuries stemming from that unsafe condition because actual or constructive notice frequently is so difficult to prove. Many courts have recognized that these traditional notice requirements can be tremendously difficult to satisfy if the condition causing the fall was temporary or transitory.
Implications of the Kelly Decision
The Kelly Court was aware of the ramifications of their decision. The defendants argued that the "mode of operation rule" effectively makes self-service businesses strictly liable to their customers. This argument was dismissed by the Court. The Court "emphasized that a ‘store owner is not an insurer of its customers' safety. Certainly when a customer is injured by an independent act of negligence which the merchant cannot reasonably be expected to foresee or guard against, the merchant is not liable. However, ordinary and foreseeable activities of patrons, not amounting to independent acts of negligence should not result in injury to fellow patrons or themselves; and the merchant is negligent if he has so arranged his merchandise that such activities can cause merchandise to fall resulting in an injury." In other words, under the mode of operation rule, a proprietor of a self-service retail operation "is negligent only if he fails to use reasonable care under the circumstances to discover the foreseeable dangerous condition and to correct it or to warn customers of its existence." It is unrealistic to require the victim of a fall resulting from a dangerous condition in a self-service grocery store to present evidence of the absence of reasonable care by the store keeper. The steps the store keeper took to discover the condition and to correct or warn of it are peculiarly within his own knowledge.
The Court in Kelly held that the plaintiff established a prima facie cause of action in negligence upon presentation of 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 or risk. The defendant may rebut the plaintiff's evidence by producing evidence that it exercised reasonable care under the circumstances. The Court stated that the "finder of fact bears the ultimate responsibility of determining whether the defendant exercised such care." The Court underscored "as most other courts have, that the defendant's burden in such cases is one of production, and that the ultimate burden of persuasion to prove negligence - in other words, that the defendant failed to take reasonable steps to address a known hazard - remains with the plaintiff." Thus, the Court in Kelly makes clear that "the burden of proof in a mode of operation case is no different from the burden of proof in any other negligence case. The plaintiff must still come forward with evidence supporting his case. Plaintiff bears the burden of persuading the jury that the defendant acted unreasonably."
According to the Kelly Court, the plaintiff always bears the burden of establishing negligence under the mode of operation rule. "In other words, although the plaintiff will make out a prima facie case upon presentation of evidence from which the fact finder reasonably could find that the defendant's self-service mode of operation gave 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, the fact finder is not obliged to conclude that the defendant was negligent. Rather, the fact finder is free to find either that the plaintiff's evidence is sufficient to establish negligence by the defendant or that the plaintiff's evidence is insufficient to establish negligence. If the fact finder were to find that the plaintiff's evidence was sufficient to establish negligence, and the defendant presented no evidence then the fact finder presumably would find in favor of the plaintiff. The defendant, however is free to adduce evidence, in response to the plaintiff's evidence that it undertook reasonable measures to avoid accidents like the accident that resulted in the plaintiff's injury." If a "defendant presents such evidence, the burden is on the plaintiff to establish that the steps taken by the defendant to prevent the accident were not reasonable under the circumstances."
While the Court in Kelly goes to great pains in trying to alleviate the concerns of the defense bar with respect to the shifting of the burdens, the Court's decision, nonetheless, effectively places the burden on the defendant. Thus, a fair reading of the Kelly case is that the plaintiff's burden of proving liability through notice is met by simply presenting evidence from which the fact finder can reasonably infer that the defendant's self-service mode of operation gives rise to a foreseeable risk of injury to customers. This appears to be a relatively easy burden to meet. Consequently, in every case in which the mode of operation rule is applied, the onus is on the defendant to adduce evidence that it undertook reasonable measures to avoid accidents like the accident that resulted in the plaintiff's injury. In essence, the Court is creating a rebuttable presumption similar to the automobile agency statutes. Thus, while the Court emphasizes that it is still the plaintiff's burden, in reality the defendant must now produce evidence to disprove that it acted unreasonably or had notice of such a dangerous condition.
While this is a great change in the law and Connecticut jurisprudence, in effect what Kelly has established is that in all business establishments which meet the mode of operation criteria, actual or constructive notice of the dangerous condition will be presumed absent a showing of reasonableness on the part of the defendant. As the Court in Kelly stated, if the plaintiff presents a prima facia case and the defendant does not present any evidence to the contrary, the Court may well instruct the jury to find that the defendant's actions were negligent. Clearly this is a significant change as it relates to the standard of care in premises liability cases. Under the previous applicable standard, as well as in almost all cases, if the plaintiff fails to prove its case the defendant need not present any evidence.
Further, on a practical note, plaintiff's counsel must be aware of the "mode of operation" rule and properly plead the allegations in the complaint. If the plaintiff does not allege either that the defendant's conduct created the unsafe condition or that defendant had actual notice of the condition the controlling question becomes that of constructive notice, whether the condition had existed for such a length of time that the defendant's employees should in the exercise of due care have discovered it in time to have remedied it. This is the previous standard of care as was applied in all premises liability cases. Thus, a plaintiff who seeks to avail itself of the mode of operation rule must be specific in its pleadings otherwise the court will not give credence to any mode of operation argument.
Conclusion
Kelly abolishes the longstanding rule of actual or constructive notice in certain premises liability cases. While the Kelly Court holds that the burden of proof has not shifted, clearly, as a practical matter it has. Pursuant to the Court's decision in Kelly, plaintiff must merely make out a prima facie case that the facts fall within the parameters of the mode of operation rule and defense counsel must then produce evidence that it took reasonable measures to avoid accidents like the accident that resulted in plaintiff's injury.
Most well-run business establishments already have proper protocols and inspection procedures in place with respect to the safety of their establishment. Whether it is enough to rebut a plaintiff's prima facie case remains to be seen.
While most practitioners agree that premises liability slip and fall cases in business establishments are difficult to prove and more often than not end in a defendant's verdict, it remains to be seen how the Kelly decision and the Supreme Court's adoption of the mode of operation rule will affect future verdicts along with the appropriate risk assessment by insurance counsel and the insurers.
Paul Cramer is a partner at Ciulla & Donofrio, LLP in North Haven, where he practices in the areas of Commercial Litigation, Insurance Litigation and Construction Law.
