Civil Jury Instructions Home

3.9-17  Commercial Mode of Operation

Revised to January 1, 2008

The plaintiff has alleged that (his/her) injuries were caused by the mode by which the defendant operated the business, in particular, by the way the defendant designed, constructed or maintained <identify the mode of operation, e.g., the self-service arrangement>.

This is called the mode of operation rule.  Under this rule, the plaintiff need not show that the defendant had notice of the particular item or defect that caused the injury.  In order to obtain damages under this rule, the plaintiff must prove 1) that the mode of operation of the defendant's business gave rise to a foreseeable risk of injury to customers [or other invitees] such as the plaintiff, and 2) that the plaintiff's injury was proximately caused by an accident within that zone of risk. 

The defendant may rebut the plaintiff's evidence by producing evidence that it exercised reasonable care under the circumstances.  The defendant has presented evidence that it undertook reasonable measures to avoid accidents like the accident that resulted in the plaintiff's injury.   Since the defendant has done so, in order to prevail, the burden is on the plaintiff to establish that those steps taken by the defendant to prevent the accident were not reasonable under the circumstances.  Ultimately the burden is upon the plaintiff to prove that the defendant's mode of operation created a foreseeable risk of injury; it is not the defendant's burden to disprove it.

[It is not the law that a defendant who runs a business guarantees the safety of those who come to the premises.  If a customer [or other invitee] is injured because of a negligent act that the defendant cannot reasonably be expected to foresee or guard against, then the defendant is not liable.]¹

If, considering all the credible evidence, you find 1) that the plaintiff has proved that the defendant's mode of operation gave rise to a foreseeable risk of injury; 2) that the injury to the plaintiff was caused by an accident within that zone of risk; and 3) that the steps taken by the defendant to prevent the accident were not reasonable under the circumstances, then you must find for the plaintiff and consider damages.  If you find that the plaintiff has not proved that the defendant's mode of operation gave rise to a foreseeable risk of injury, or you find that the injury to the plaintiff was not caused by an accident within that zone of risk, or you find that, even though the defendant's mode of operation gave rise to a foreseeable risk of injury and the injury to the plaintiff was caused by an accident within that zone of risk, but the defendant exercised reasonable care under the circumstances, then you must find for the defendant.
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¹ This language can be used here if it has not been previously used in the general premises liability part of the charge.  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 790 (2007).

Authority

Kelly v. Stop & Shop, Inc., 281Conn. 768, 791-93 (2007).

Notes

It will be most common that this theory will be advanced by the plaintiff as an alternative to the traditional premises liability theory that requires proof of actual or constructive notice.  The charge should make clear that the plaintiff can recover under either theory, so that the "find for the defendant" language in the last sentence may have to be adjusted accordingly.