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LEO A. FISHER III v. BIG Y FOODS, INC. (SC 18406)
Rogers, C. J., and Palmer, Vertefeuille, Zarella and McLachlan, Js.* Argued January 5--officially released September 21, 2010

Sandra Rachel Stanfield, with whom, on the brief, was David A. Estabrook, for the appellant (defendant). Mark J. Migliaccio, for the appellee (plaintiff). Jack G. Steigelfest and Claudia Baio filed a brief for the Connecticut Defense Lawyers Association as amicus curiae. James G. Geanuracos filed a brief for the Stop and Shop Supermarket Company, LLC, as amicus curiae.

Opinion

ROGERS, C. J. This appeal requires us to decide what facts and circumstances give rise to a plaintiff's right to recover under the mode of operation rule, an exception to the traditional premises liability doctrine, which dispenses with the requirement that a plaintiff prove that a business owner had actual or constructive notice of the specific unsafe condition giving rise to the plaintiff's injury. The defendant, Big Y Foods, Inc., appeals from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff, Leo A. Fisher III, for injuries he sustained when he slipped and fell in a supermarket owned and operated by the defendant.1 The defendant claims that the trial court improperly: (1) construed and applied Connecticut law on the mode of operation rule; (2) denied the defendant's motions for a directed verdict, to set aside the verdict and for judgment notwithstanding the verdict on the basis of its misconstruction of the law; and (3) confused the jury by instructing it on traditional premises liability principles because the plaintiff had abandoned any claim pursuant to those principles. We agree with the defendant's first two claims2 and, accordingly, reverse the judgment of the trial court.3 The following facts, which are not materially disputed, are relevant to the present appeal. On July 24, 2005, the plaintiff was shopping at the defendant's East Windsor supermarket. As he walked down aisle seven toward the front of the store, looking for an item on the shelving, he slipped and fell on a puddle of liquid, injuring his knee and shoulder. The plaintiff described the puddle as being about one and one-half feet in diameter, and the liquid as clear and syrupy. There was no broken container near the puddle and the source of the liquid was not apparent,4 but the plaintiff believed it was fruit cocktail syrup because the liquid contained colored particles and canned fruit was stocked in aisle seven.5 At the time of the plaintiff's fall, the puddle of liquid appeared undisturbed, without footprints or shopping cart track marks running through it.6 The defendant employs porters whose duties include sweeping the floor with dry mops four times throughout the day, beginning at 10 a.m., 1 p.m., 4 p.m. and 7 p.m. A videotape admitted into evidence at trial showed that, seven minutes prior to the plaintiff's fall, porter John Kelley had passed through aisle seven during the course of the 4 p.m. sweep, and a sweep log confirmed that the sweep had been performed.7 Kelley testified that he saw no spill at that time. Pursuant to the defendant's policy, porters are required to inspect each aisle as it is swept. The defendant's policy generally is to ``inspect the store all the time.'' The defendant operates its grocery stores in standard modern fashion. The East Windsor store is large, about

the size of a football field. Customers are permitted to roam freely about the premises, remove items from the shelves and place them into their carts or return them to the shelves. The store's aisles have shelving on both sides and signs hanging overhead that alert customers to the location of various products. Michael Messer, a store supervisor, agreed at trial that, ``[m]ore or less, Big Y is a self-service type store.'' He confirmed that, at times, customers cause spills or messes as a result of mishandling items.8 Messer testified, however, that spills similar to the one at issue were uncommon and that he would not expect the fruit products in aisle seven to break open if dropped. He acknowledged that a glass jar could break, but disagreed that it was foreseeable that a can or plastic cup could fall off a shelf and make a mess. No evidence was presented to the contrary. On September 26, 2005, the plaintiff commenced this negligence action against the defendant. The operative complaint sounded in traditional premises liability9 and sought monetary damages. By the commencement of trial, however, this court had issued its decision in Kelly v. Stop & Shop, Inc., 281 Conn. 768, 791

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Connecticut Law