PREMISES LIABILITY: Connecticut Appellate Court holds that mode of operation rule does not apply to slip and fall in pet store

The plaintiff alleged that while in the defendant pet store, she slipped and fell on a puddle of dog urine and sustained injuries.  The defendant allowed leashed animals in the store.  The store manager testified that he expected occasional pet messes as a result and that there were sanitation stations throughout the store to address them.  He testified that there was no single employee responsible for cleaning up pet messes, but that employees regularly walked the store aisles to talk with customers and that the defendant’s policy was for immediate cleanup when an employee became aware of pet messes.

The manager testified that there had been no incidents or complaints regarding puddles in the store on the date of the accident.  He testified that there were no similar accidents during the preceding six years while the manager worked at the store.  He testified that pet messes occurred infrequently, one or two times per week.  At trial, the plaintiff provided no evidence with regard to the defendant having actual or constructive notice of the puddle on the floor on which she slipped and fell.  She claimed that notice was unnecessary based upon the mode of operation rule.  She claimed that the defendant’s allowing leashed pets in the store created an inherently foreseeable and regularly occurring hazard.  The Superior Court rejected that claim, and on appeal the Appellate Court affirms.

After reviewing prior Supreme Court and Appellate Court cases addressing the mode of operation rule, the court notes that the mode of operation exception to the requirement of establishing actual or constructive notice was “meant to be a narrow one.”  The court then distilled three overarching requirements for application of the mode of operation rule: “(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 Appellate Court concludes that the facts of the case before it do not meet any of those three requirements.

First, the Appellate Court rejects the applicability of the first element, noting that the defendant operated as any other pet store would operate; it simply allowed leashed animals into the store.  “Merely describing the customary way of conducting a particular kind of business is not enough.  The record does not demonstrate a specific method of operation that deviates from the general operation of similar businesses.”  As to the second element, the Appellate Court states that animal messes are not inherently foreseeable hazardous conditions resulting from a pet-friendly business policy, particularly when the records fails to show that injuries caused by pet messes occurred regularly.  “The plaintiff’s injury was the only one that occurred during the responsible manager’s tenure.  Although there is the potential for pet messes to occur under the defendant’s mode of operation, that potential alone does not give rise to a regularly occurring or inherently foreseeable hazard.”  Finally, as to the third element, the court held that there was no identifiable zone of risk.  The court noted that leashed animals would be found throughout the store on a daily basis and that adopting the plaintiff’s argument of a “moving target” theory 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.”

Porto v. Petco Animal Supplies Stores, Inc., 2016 WL 4191567 (Conn.App.)(officially released August 16, 2016)