3.9-17 Commercial Mode of Operation
Revised to December 10, 2010
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. Rather, the
plaintiff must prove:
1. that this mode of operation gave rise to a foreseeable risk of injury to
customers [or other invitees],
2. that the defendant failed to exercise reasonable care to avoid foreseeable
accidents created by this mode of operation, and
3. that the plaintiff's injury was proximately caused by such failure.
[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
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).
Fisher v. Big Y Foods,
Inc., 298 Conn. 414 (2010); Kelly
v. Stop & Shop, Inc., 281 Conn. 768, 791-93 (2007).
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.