April 16, 2007

NEW RULES NEEDED AFTER CHANGE

New Practice Book rules and forms will be needed, and additional discovery may be necessary, as litigants scramble to prepare their slip-and-fall cases for trial under the newly adopted "mode of operation" doctrine.

"The interrogatory forms for premises liability cases are wholly inadequate at this point to deal with the issues that are raised by this case," said Joel T. Faxon, a plaintiff's lawyer in the groundbreaking state Supreme Court case of Maureen Kelly v. Stop and Shop.

In Kelly, the high court adopted a "mode of operation" test that puts more emphasis on how commercial businesses are designed or operated, and less emphasis on how long a hazardous condition has remained uncorrected. The unanimous en banc panel aligned Connecticut with 22 other states that recognize the doctrine.

It effectively eliminates the requirement that a plaintiff prove the business owner knew or should have known of the hazard. Adoption of the new doctrine gave the plaintiff in Kelly a new trial, and applies to other pending cases which had not reached trial when the ruling was issued April 3.

Notice Requirements Unnecessary

"The rule," wrote Justice Richard N. Palmer, "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."

A customer injured due to the inherently flawed design or operation of a store, may now recover without having to prove the proprietor had actual or constructive notice of the specific "banana peel" causing the accident.

Plaintiff Maureen Kelly is represented by Faxon and Michael A. Stratton, of New Haven's Stratton Faxon. Back in 1999, she was serving herself a cottage cheese and fruit salad at lunchtime in a Fairfield Stop & Shop Supermarket. There was a narrow floor runner around the salad bar, which had only a four-inch ledge — too small to hold her foil food container. Customers typically held the containers aloft while serving themselves.

Kelly stepped off the runner onto the tile floor while reaching for a lid for her salad, slipped and fell, tearing a rotator cuff in her shoulder. As a store employee was cleaning up, Kelly noticed "a wet, slimy piece of green lettuce" sticking to her shoe. She claimed it caused her fall.

At Kelly's bench trial, Stratton urged the judge to adopt the "mode of operation" test.

Instead, the trial court Judge Earl B. Richards III, found against Kelly on notice grounds, because she had not alleged that Stop & Shop had actual notice of the lettuce leaf on the floor. Furthermore, she could not prove the lettuce had been lying on the floor for such a long period of time that, by exercising reasonable care, store employees should have cleaned it up, Richards ruled.

In Kelly's case, store manager Nicholas J. Bishighini had described the salad bar area as a place where "people used to let … salads fall. It was precarious."

The notice defense, Faxon said in an interview, "has long been a severe impediment to prevailing. Here, the manager testified the setup was 'precarious.' That must mean negligence, but there was no liability found. The old law, which sprang from feudal times, just wasn't fair," he said.

Adopted In Theory

Palmer noted that the state Appellate Court had recognized the principles of the mode of operation doctrine in its 2002 ruling in Meek v. Wal-Mart. In that case, plaintiff Jeffrey Meek was hurt when two boxes of aluminum camping tables fell on him while he was shopping at the Waterford Wal-Mart.

The Appellate Court reasoned that merchandise shouldn't be "stacked or placed at such heights, widths, depths or in such locations which would make it susceptible to falling… ." Store personnel placed the cartons in a precarious spot, aware that customers routinely dislodge merchandise. When the store itself creates the condition, notice is presumed, it held.

Furthermore, the Meek court found, "there is no logical distinction between a situation in which the storeowner directly creates the condition or defect, and where the storeowner's method of operation creates a situation [in which] it is reasonably foreseeable that the expectable acts of third parties will create a dangerous condition or defect."

Future Cases

In a final footnote to the Kelly case, Palmer said the new doctrine shall be applied to all future and pending cases in which trial had not commenced by April 3. However, trial judges are given discretion to bar the new rule from pending cases "if there is an overriding reason to do so," he wrote.

Faxon, in an interview, said the standard interrogatory forms for premises cases don't contemplate the issues raised by the Kelly case. "I think what's going to happen is that the judges of the Superior Court and the trial bar are going to have to formulate new interrogatories that deal with the issues raised by this case."

The questions would pertain more to the design and operation of the site of the injury, Faxon added. "It needs to be done quickly to allow for discovery in the areas that are relevant to this new doctrine," he said, noting, "It's certainly better to amend the rules rather than have the courts inundated with motions for additional discovery in every slip-and-fall case."

Steven D. Ecker, of Hartford's Cowdery, Ecker & Murphy, argued the case for Kelly at the Supreme Court. "It's a major change in Connecticut's tort law," he said.

Stop & Shop was represented by Suzannah K. Nigro, of Trumbull's Williams, Cooney & Sheehy. She declined comment.

Nigro's firm is defending former Chief Justice William J. Sullivan from an ethics complaint lodged by Justice David M. Borden, the state's acting chief justice. Both Borden and Sullivan recused themselves from hearing the appeal in Kelly, and were replaced on the en banc panel by Appellate Court Judges Alexandra D. DiPentima and C. Ian McLachlan.