Summary
finding a crease in a rug at a store that a patron slipped and fell on did not constitute a foreseeable risk created by the store's self-serve mode of operation in selling office supplies and equipment
Summary of this case from Wagoner v. Dollar Gen. Corp.Opinion
No. CV-08-5018858
October 9, 2008
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The defendant, Staples Connecticut, Inc., has moved to strike the Second Count of the complaint on the grounds that it fails to state a cause of action. The Second Count of the complaint alleges that the injuries to the plaintiff were caused by the defendant's "mode of operation."
Statement of Facts
The plaintiff alleges that she slipped and fell on a crease or fold in a rug or runner on the floor of the defendant's store. In the First Count of the complaint the plaintiff alleges that the defendant failed to maintain the premises in a reasonably safe condition. The Second Count of the complaint, which the plaintiff has defined parenthetically as "mode of operation," is identical to the first, except that it adds a paragraph, which alleges that the defendant allowed customers to select their own office supplies, and a subparagraph which alleges that the plaintiff's fall and injuries were the result of the defendant's negligence in that:
The self-service mode of operation employed by the defendant in selling office supplies and equipment created a foreseeable risk of danger, including tripping and falling on a rug and/or runner, to customers such as the plaintiff.
Discussion of the Law and Ruling
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, CT Page 16367 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
In Kelly v. Stop and Shop, Inc., 281 Conn. 768, 810, 918 A.2d 249 (2007), the Connecticut Supreme Court first recognized the "mode of operation" as a standard of proof in a premises liability action which relieved the plaintiff of the burden of proving that the defendant had actual or constructive notice of a dangerous condition on the premises. The Kelly Court reviewed the law of premises liability:
It is undisputed that the owner of a retail store has a duty to keep the premises in a reasonably safe condition for the benefit of its customers. See, e.g., Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002). Recently, we reiterated the legal standard that this court ordinarily has applied to premises liability claims brought by business invitees: "Typically, [for [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it . . . In the absence of allegations and proof of any facts that would give rise to an enhanced duty . . . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers." (Citations omitted; internal quotation marks omitted.)
Id. Kelly v. Stop and Shop, Inc., supra, at 776.
In Kelly, the Court adopted the mode of operation rule to relieve a plaintiff from proving notice if the defendant's "self service mode of operation business gave rise to a forseeable risk of injury to customers and that the plaintiff's injury was proximately caused by an accident within the zone of risk." Id. at 810. The Court described the rationale for relaxing the traditional notice requirements:
The modem self-service form of retail sales encourages . . . patrons to obtain for themselves from shelves and containers the items they wish to purchase, and to move them from one part of the store to another in baskets and shopping carts as they continue to shop for other items, thus increasing the risk of droppage and spillage. Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 435 (Ky. 2003).
Kelly v. Stop and Shop, Inc., supra, at 778.
In a self-service operation, an owner has for his pecuniary benefit required customers to perform the tasks previously carried out by employees. Thus, the risk of items being dangerously located on the floor, which previously was created by employees, is now created by other customers.
Kelly v. Stop and Shop, Inc., supra, at 781 (citing Ciminski v. Finn Corp., 13 Wash. App. 815, 819, 537 P.2d 850).
The mode of operation rule is not a separate cause of action. Rather, it is a manner in which the notice requirement is addressed to determine liability in premises liability cases. The rule has limitations. "The mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer interference. If the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law." Jackson v. K-Mart Corporation, 251 Kan. 700 (1992).
The plaintiff has failed to allege any facts that could establish that a crease in a runner was a foreseeable risk created by the self-service mode of operation. Rather, the Second Count merely states the conclusory allegation that "self service mode of operation employed by the defendant in selling office supplies and equipment created a foreseeable risk of danger, including tripping and falling on a rug and/or runner, to customers such as the plaintiff." Clearly, a crease in a rug can occur in any premises, whether it is a self-service retail store, a movie theater, a restaurant or clothing store. The Second Count is therefore stricken because 1) the mode of operation is not a separate cause of action and 2) the count contains no facts which bring it within the class of cases in which the defendant's mode of operation relieves the plaintiff of the burden of proving notice of the defective condition.