Porto v. Petco Animal Supplies Stores, Inc.
Porto v. Petco Animal Supplies Stores, Inc.
Opinion
*574
Traditionally, in a premises liability case, a plaintiff must prove that the defendant had actual or constructive notice of the hazard that injured her.
Baptiste v. Better Val-U Supermarket, Inc.,
In its memorandum of decision the court found the following facts. The plaintiff is a healthy, twenty-eight year old woman employed as a registered nurse. On August 20, 2012, the plaintiff and her friend visited the defendant's Hamden location to return a bag of pet food. They entered the store, and on their way to the cash register, the plaintiff slipped on a puddle of liquid. The plaintiff believed that the liquid was dog urine based on her experience as a dog owner. During her fall, the plaintiff tried to catch herself, but rolled her ankle in the process and sustained several injuries.
The plaintiff was generally aware that the defendant allowed leashed animals in the store and she acknowledged at trial that "she should keep an eye out on the floor when walking in the defendant's store." She was unaware of any animals in the store on August 20, 2012, and has never seen any other puddles in the defendant's stores similar to the one she slipped on.
*576 Following her fall, the plaintiff notified the defendant's cashier that "she had just fallen in what she believed was urine." The plaintiff was informed that someone would clean up the mess and that Timothy Smith, the store manager, would complete an accident report. On August 20, 2012, Smith was the assistant manager responsible for the defendant's Hamden store, and he had worked for the defendant in various locations and capacities throughout the prior nine years. The plaintiff testified that Smith saw her fall on the store's surveillance system, but Smith later testified that he was unsure if he had.
Smith completed the incident report electronically and described the cause as "Water/Ice." That categorization of the accident was predetermined by a drop-down menu and was not Smith's description. Smith also described the incident in his own words, stating that the plaintiff "had slipped in dog urine." Smith believed that the incident was not a "questionable case," and he indicated that in his report, stating that the plaintiff's description was credible.
At trial, Smith described the defendant as "a pet specialty store that attempts to foster relationships with its customers and assist them in providing a happy and healthy home for their pets." The defendant specifically permits "customers to bring any animal into its store as long as the animal is on a leash." Smith described the defendant's policy as an attempt to "foster a relationship" with customers and to "provide its customers with animal-specific assistance, such as determining the proper size product for an animal."
Smith testified that the defendant expects occasional pet messes and that there are sanitation stations throughout the store to address them. Although no single employee is responsible for cleaning up pet messes, employees regularly walk the *287 store aisles to talk with *577 customers, and the defendant's policy is for immediate cleanup when employees become aware of pet messes. Smith testified that "there were no further incidents or complaints regarding puddles in the store on August 20, 2012." Further, there were no similar accidents in the prior six years Smith worked at the store and pet messes occurred infrequently. 2
On July 26, 2013, the plaintiff brought this action against the defendant, alleging that the store had negligently failed to prevent, warn of, or clean up the dog urine on which she slipped and fell. The defendant filed an answer, admitting that at all times it was "in the business of selling consumer/pet products and was acting through its agents, servants and/or employee." The defendant further admitted that it "maintained, controlled, and possessed the subject premises." The defendant denied the plaintiff's allegations of negligence and "pleaded insufficient knowledge to the remainder of the complaint's paragraphs, leaving the plaintiff to her proof." The matter was tried before the court on August 13, 2014.
At trial, the plaintiff provided no evidence that the defendant had actual or constructive notice of the puddle on the floor where she slipped and fell. She argued that proof of notice was unnecessary because, under the mode of operation rule, she need only prove that the defendant's particular mode of operation created an inherently foreseeable or regularly occurring hazard, and the accident occurred within an identifiable zone of risk.
In its memorandum of decision, the court reasoned that the mode of operation rule was inapplicable to the facts of this case because the "hazardous condition appear[ed] to have been brought into the store" from *578 the outside, distinguishing this from the "typical case in which a hazardous condition is caused by the spilling or dropping of an item for sale" already within the store. Further, the court found that, even if the mode of operation rule applied, the defendant took reasonable precautions to "keep its premises free of hazardous conditions."
On appeal, the plaintiff claims that the court improperly held that the mode of operation rule did not extend to the defendant's "pet-friendly method of operation." She argues that her case falls under the rule because allowing leashed pets into the store created an inherently foreseeable risk of pet messes, and the leashed pets should be considered "moving" zones of risk. We disagree.
The plaintiff's principal claim concerns the proper construction and application of the mode of operation rule within premises liability. Whether the trial court properly construed and applied the mode of operation rule is a question of law over which we exercise plenary review. See
Fisher v. Big Y Foods Inc.,
It is undisputed that a retail store owes a duty to a business invitee to maintain its premises "in a reasonably safe condition."
Baptiste v. Better Val-U Supermarket, Inc.,
supra,
The mode of operation rule is a narrow exception to the traditional notice requirement and arose from our Supreme Court's decision in
Kelly v. Stop & Shop, Inc.,
supra,
Our Supreme Court in
Kelly
recognized that, in such circumstances, requiring a plaintiff to prove actual or constructive notice would be "unfair and unnecessary" because businesses "should be aware of the potentially hazardous conditions that arise from the way in which they conduct their business" and customer carelessness should be expected. Id., at 778,
Two subsequent cases have clarified the scope of the mode of operation rule. First, in
Fisher v. Big Y Foods Inc.,
supra,
On appeal, our Supreme Court reversed the judgment and held that "self-service merchandising itself" does not fall under the mode of operation rule. Id., at 424,
*289
The court reasoned that the rule applied to businesses that employed a more specific method of operation within the general business environment that is distinct from the ordinary, inevitable way of conducting the sort of commerce in which the business is engaged. Id., at 427,
*581
Second, in
Konesky v. Post Road Entertainment,
On appeal, this court disagreed, rejecting the notion that a defendant incurs liability "under the mode of operation doctrine simply by serving chilled beer." Id., at 142-43,
From these three cases, we distill three overarching requirements for the mode of operation rule to apply: (1) the defendant must have a particular mode of operation distinct from the ordinary operation of a related business; (2) that mode of operation must create a regularly occurring or inherently foreseeable hazard; and (3) the injury must happen within a limited zone of risk.
The facts of the present case do not meet any of these three requirements. First, the rule is inapplicable
*582
when a particular mode of operation is not considerably different from that of similarly operated businesses. See id., at 141,
Second, the mode of operation rule may substitute for notice to a retailer when the store's mode of operation invites careless customer interference, creating an expected, foreseeable hazard.
Kelly v. Stop & Shop, Inc.,
281 Conn., supra, at 788,
Third, application of the mode of operation rule "is meant to be a narrow one, and applies only to
those areas where the risk of injury is continuous or foreseeably inherent
" as a result of a store's mode of operation. (Emphasis added; internal quotation marks omitted.)
Fisher v. Big Y Foods, Inc.,
supra,
*584
to require proof of actual or constructive notice under the mode of operation rule; it would be equally unfair to impose liability under the mode of operation when there is no identifiable zone of risk of which proprietors should be on notice.
Kelly v. Stop & Shop, Inc.,
supra,
*291
The zone of risk identified in
Kelly
was the area located near the salad bar where the plaintiff's injury occurred. Id., at 796,
Under the circumstances before us, there is no identifiable zone of risk where the defendant should be on notice of continuous or inherently foreseeable hazards. The plaintiff contends that leashed animals should be considered "moving targets" and that the zone of risk should be construed as where the pet messes occurred. This simply does not comport with our understanding of the zone of risk requirement. Leashed animals are found throughout the store on a daily basis and adopting the plaintiff's position would render the entire store a zone of risk. Although we agree with the plaintiff that the zone of risk need not be limited to a precise, measurable area, some limitations are required. Here, nothing in the record suggests that the leashed pets preferred a particular area of the store, or that there was an area of the store where pet messes occurred frequently. Without specific proof of a particular zone of risk, we are unwilling to adopt the plaintiff's proposed standard.
In fact, the "moving target" theory raised by the plaintiff was discussed in
Konesky,
where patrons walked
*585
around the bar with cold drinks that dripped on the floor.
Konesky v. Post Road Entertainment,
supra,
In sum, merely allowing a leashed pet into the defendant's store does not give rise to the conduct against which the rule intends to impose liability. See
Fisher v. Big Y Foods, Inc.,
supra,
The judgment is affirmed.
In this opinion the other judges concurred.
The plaintiff raised three claims on appeal: (1) the court improperly held that the mode of operation rule did not apply at all on the facts of this case; (2) the court erroneously found that, even if the rule did apply, the plaintiff had not established a prima facie case of negligence under it; and (3) the court erroneously found that, even if the plaintiff had established prima facie negligence, the defendant rebutted it with evidence of reasonable precautions. In light of our resolution of the plaintiff's first claim, we need not address her second and third claims.
Smith testified that "approximately one to two customers per week would report a puddle" caused by a pet.
In her appellate brief, the plaintiff cites an unpublished Washington case,
Dupuy v. Petsmart,
The trial court also noted that the mode of operation rule typically involves hazardous conditions "caused by the spilling or dropping of an item for sale that is already within the store." Because that particular claim was not squarely raised in this case, we do not reach the question of whether that distinction is legally relevant.
The court noted that "the evidence demonstrated that there were only approximately one to two animal messes per week in the defendant's store and that the plaintiff's was the only incidence of a slip and fall in animal urine during [the store manager's] six years at the store."
Reference
- Full Case Name
- Katerina PORTO v. PETCO ANIMAL SUPPLIES STORES, INC.
- Cited By
- 4 cases
- Status
- Published