LEO A. FISHER, III v. BIG Y FOODS, INC., SC 18406

Judicial District of Hartford

Premises Liability; Whether Trial Court Correctly Applied the Mode of Operation Rule of Premises Liability; Whether Court Properly Charged the Jury as to the Allegations of Premises Liability Contained in Plaintiff's Complaint and Improperly Failed to Instruct the Jury on the law of Notice.  The plaintiff brought this action after slipping and falling on a liquid substance in a grocery aisle at the defendant's supermarket.  He asserted a claim of premises liability negligence.  The matter was tried before a jury, and the court charged the jury on the mode of operation rule of premises liability.  Under this rule, a business invitee who is injured due to 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.  The court informed the jury that the plaintiff alleged that his injuries were caused by the defendant's mode of operating a self-service supermarket.  The court also charged the jury on premises liability negligence.  The jury subsequently found in favor of the plaintiff under the mode of operation rule.  The defendant moved to set aside the jury's verdict, arguing that the allegations of the plaintiff's complaint and the evidence failed to justify the application of the mode of operation rule.  In particular, it asserted that the only proof that the plaintiff offered on the mode of operation rule was that the defendant is a self-service supermarket.  It further asserted that the plaintiff was required to show, and failed to show, that the defendant's mode of operation created a foreseeable risk of injury and that his injury was caused by an accident within that zone of risk.  Hence, it argued that the court, in applying the mode of operation rule, essentially made it strictly liable for the plaintiff's injuries solely because it operates a self-service supermarket.  Moreover, it argued that the court improperly instructed the jury to consider the plaintiff's allegations of traditional premises liability negligence without charging the jury on the law of notice.  The trial court denied the defendant's motion to set aside the verdict.  In this appeal, the Supreme Court will determine whether the trial correctly construed and applied Connecticut law on the mode of operation rule.  It will also determine whether the court properly charged the jury as to the allegations of premises liability negligence contained in the plaintiff's complaint where the defendant argues that the court had previously determined that the plaintiff had failed to prove such allegations.  Moreover, it will determine whether the court improperly failed to charge the jury on the law of notice.