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DARREN HUMPHREY v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC. (SC 18181)
Norcott, Katz, Palmer, Vertefeuille and McLachlan, Js.* Argued April 20, 2009--officially released April 27, 2010

James R. Fogarty, for the appellant (plaintiff). Cynthia Dolan, with whom, on the brief, was Karen A. Jockimo, for the appellee (defendant).

Opinion

PALMER, J. The plaintiff, Darren Humphrey, commenced this action against the defendant, Great Atlantic and Pacific Tea Company, Inc., for damages that he allegedly had sustained when he slipped and fell on some grapes in a supermarket owned and operated by the defendant. Following a bench trial, the court rendered judgment for the defendant after finding that the plaintiff had failed to establish that the defendant had actual or constructive notice of the existence of the grapes on the floor. Shortly thereafter, this court decided Kelly v. Stop & Shop, Inc., 281 Conn. 768, 918 A.2d 249 (2007), in which we adopted the mode of operation rule,1 which does not require an injured party to prove that the defendant had actual or constructive notice of the dangerous condition. Id., 769, 775. In Kelly, we limited the application of our holding in that case to future cases and to a certain class of then pending cases, specifically, only those in which the trial had not yet commenced. Id., 794 n.9. Subsequently, the plaintiff appealed to the Appellate Court, claiming that the trial court improperly had rejected his claim concerning the applicability of the mode of operation rule. Relying on our limiting language in Kelly, the Appellate Court concluded that the present case did not fall within the class of cases to which our holding applied; Humphrey v. Great Atlantic & Pacific Tea Co., 107 Conn. App. 796, 799, 946 A.2d 889 (2008); and, therefore, affirmed the trial court's judgment. Id., 800. We granted the plaintiff's petition for certification to appeal in order to decide whether the Appellate Court properly construed the limiting language in Kelly as applying to a case, such as the present case, in which the plaintiff actually had raised a claim concerning the applicability of the mode of operation rule in the trial court and, therefore, had preserved that claim for purposes of appeal. See Humphrey v. Great Atlantic & Pacific Tea Co., 288 Conn. 908, 909, 953 A.2d 653 (2008). We now conclude that the limitation that we announced in Kelly applies only to a category of then pending cases in which the plaintiff had not raised a claim under the mode of operation rule in the trial court. Because the Appellate Court reached a contrary conclusion, we reverse its judgment. The following facts and procedural history, which are set forth in the opinion of the Appellate Court, are relevant to our disposition of this appeal. In October, 2005, the plaintiff commenced the present action, which was tried to the court in 2006. Humphrey v. Great Atlantic & Pacific Tea Co., supra, 107 Conn. App. 797. ``In his posttrial brief, the plaintiff, citing [the Appellate] [C]ourt's decision in Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002), urged the court to impose liability on the defendant `based on negligence in [its] mode or method of displaying merchandise when [it]

knew or should have known that the merchandise might be dropped or spilled to the floor by customers.' '' Humphrey v. Great Atlantic & Pacific Tea Co., supra, 798 n.1. ``On January 5, 2007, the court . . . render[ed] judgment in favor of the defendant. . . . [T]he court found that the plaintiff, [who was] walking in the produce aisle of a supermarket owned and operated by the defendant on October 8, 2003, slipped and fell on grapes that the defendant offered for purchase at a selfservice counter.2 The [trial] court stated that for the plaintiff to prove his case, `there must be notice [to the defendant] of the specific defect that caused the [plaintiff's claimed] injury and not merely of conditions naturally productive of that defect.'3 The court found that there was no credible evidence that the defendant had actual or constructive notice as to the existence of the claimed specific defect of grapes on the floor. Accordingly, the court concluded that the plaintiff had not proven that the defendant was liable for any of the injuries that the plaintiff claimed to have [sustained] from his fall. ``On April 3, 2007, [this court] released its decision in Kelly, adopting the mode of operation rule.''4 Id., 797

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