DARREN HUMPHREY v. GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., SC 18181
Judicial District of Stamford-Norwalk
Premises Liability; Whether the Appellate Court Improperly Failed to Apply to this Slip and Fall Case the "Mode of Operation" Analysis that was Employed in Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467 (2002). In 2003, the plaintiff slipped and fell on grapes while he was walking in the produce aisle of a supermarket that is owned and operated by the defendant. Thereafter, the plaintiff initiated this action, alleging that the slip and fall was caused by the defendant's negligence. The trial court rendered judgment in favor of the defendant, finding that there was no credible evidence that the defendant had actual or constructive notice of the existence of the grapes on the floor. On appeal, the plaintiff argued that the trial court improperly failed to consider whether the defendant was liable for his injuries under the "mode of operation" rule, which provides that a business invitee who is injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition if the business' chosen mode 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. In addressing the plaintiff's claim, the Appellate Court (107 Conn. App. 796) noted that the Supreme Court did not expressly adopt the mode of operation rule until it decided Kelly v. Stop & Shop, Inc., 281 Conn. 768 (2007), which was released after the trial court rendered its decision in the present matter. It also acknowledged that in his posttrial brief, the plaintiff had relied on Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467 (2002), which, according to the Kelly court, employed the same analysis and reasoning that is used when the mode of operation rule is applied notwithstanding that the Meek court did not expressly adopt the rule. It further emphasized, however, that the Kelly court decided that the mode of operation rule could only be applied to future cases and to all previously filed cases in which the trial had not yet commenced as of the date of the release of the decision in Kelly. The Appellate Court therefore held that because the trial in the present case had concluded almost three months prior to the release of Kelly, the trial court was not bound to apply the mode of operation rule. In this appeal, the Supreme Court will determine whether the Appellate Court improperly failed to apply to the present case the mode of operation analysis that was employed in Meek.