Porto v. Petco Animal Supplies Stores, Inc. , 167 Conn. App. 573 ( 2016 )

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KATERINA PORTO v. PETCO ANIMAL
SUPPLIES STORES, INC.
(AC 37516)
DiPentima, C. J., and Alvord and Gruendel, Js.
Argued May 18—officially released August 16, 2016
(Appeal from Superior Court, judicial district of New
Haven, Burke, J.)
Chet L. Jackson, for the appellant (plaintiff).
Kathleen M. Grover, with whom was P. Jo Anne
Burgh, for the appellee (defendant).
Opinion
GRUENDEL, J. Traditionally, in a premises liability
case, a plaintiff must prove that the defendant had
actual or constructive notice of the hazard that injured
her. Baptiste v. Better Val-U Supermarket, Inc., 262
Conn. 135, 140, 811 A.2d 687 (2002). Our Supreme Court
adopted a narrow exception to that notice requirement
in Kelly v. Stop & Shop, Inc., 281 Conn. 768, 770, 918
A.2d 249 (2007), where in it held that a supermarket
that operated a self-service salad bar was liable for
slips and falls suffered by patrons near the service area
because the store’s self-service mode of operation cre-
ated an inherently foreseeable hazard. In the present
case, the plaintiff, Katerina Porto, seeks to extend that
holding to pet stores that allow leashed animals inside
its stores, arguing that their ‘‘pet-friendly mode of opera-
tion’’ caused her to slip and fall in dog urine while a
customer at the store of the defendant, Petco Animal
Supplies Stores, Inc.1 The trial court held that the mode
of operation rule did not apply under those facts and
rendered judgment in favor of the defendant. We agree,
and affirm the judgment of the trial court.
In its memorandum of decision the court found the
following facts. The plaintiff is a healthy, twenty-eight
year old woman employed as a registered nurse. On
August 20, 2012, the plaintiff and her friend visited the
defendant’s Hamden location to return a bag of pet
food. They entered the store, and on their way to the
cash register, the plaintiff slipped on a puddle of liquid.
The plaintiff believed that the liquid was dog urine based
on her experience as a dog owner. During her fall, the
plaintiff tried to catch herself, but rolled her ankle in
the process and sustained several injuries.
The plaintiff was generally aware that the defendant
allowed leashed animals in the store and she acknowl-
edged at trial that ‘‘she should keep an eye out on the
floor when walking in the defendant’s store.’’ She was
unaware of any animals in the store on August 20, 2012,
and has never seen any other puddles in the defendant’s
stores similar to the one she slipped on.
Following her fall, the plaintiff notified the defen-
dant’s cashier that ‘‘she had just fallen in what she
believed was urine.’’ The plaintiff was informed that
someone would clean up the mess and that Timothy
Smith, the store manager, would complete an accident
report. On August 20, 2012, Smith was the assistant
manager responsible for the defendant’s Hamden store,
and he had worked for the defendant in various loca-
tions and capacities throughout the prior nine years.
The plaintiff testified that Smith saw her fall on the
store’s surveillance system, but Smith later testified that
he was unsure if he had.
Smith completed the incident report electronically
and described the cause as ‘‘Water/Ice.’’ That categori-
zation of the accident was predetermined by a drop-
down menu and was not Smith’s description. Smith also
described the incident in his own words, stating that
the plaintiff ‘‘had slipped in dog urine.’’ Smith believed
that the incident was not a ‘‘questionable case,’’ and he
indicated that in his report, stating that the plaintiff’s
description was credible.
At trial, Smith described the defendant as ‘‘a pet spe-
cialty store that attempts to foster relationships with
its customers and assist them in providing a happy and
healthy home for their pets.’’ The defendant specifically
permits ‘‘customers to bring any animal into its store
as long as the animal is on a leash.’’ Smith described
the defendant’s policy as an attempt to ‘‘foster a rela-
tionship’’ with customers and to ‘‘provide its customers
with animal-specific assistance, such as determining
the proper size product for an animal.’’
Smith testified that the defendant expects occasional
pet messes and that there are sanitation stations
throughout the store to address them. Although no sin-
gle employee is responsible for cleaning up pet messes,
employees regularly walk the store aisles to talk with
customers, and the defendant’s policy is for immediate
cleanup when employees become aware of pet messes.
Smith testified that ‘‘there were no further incidents or
complaints regarding puddles in the store on August
20, 2012.’’ Further, there were no similar accidents in
the prior six years Smith worked at the store and pet
messes occurred infrequently.2
On July 26, 2013, the plaintiff brought this action
against the defendant, alleging that the store had negli-
gently failed to prevent, warn of, or clean up the dog
urine on which she slipped and fell. The defendant filed
an answer, admitting that at all times it was ‘‘in the
business of selling consumer/pet products and was act-
ing through its agents, servants and/or employee.’’ The
defendant further admitted that it ‘‘maintained, con-
trolled, and possessed the subject premises.’’ The defen-
dant denied the plaintiff’s allegations of negligence and
‘‘pleaded insufficient knowledge to the remainder of
the complaint’s paragraphs, leaving the plaintiff to her
proof.’’ The matter was tried before the court on August
13, 2014.
At trial, the plaintiff provided no evidence that the
defendant had actual or constructive notice of the pud-
dle on the floor where she slipped and fell. She argued
that proof of notice was unnecessary because, under
the mode of operation rule, she need only prove that
the defendant’s particular mode of operation created
an inherently foreseeable or regularly occurring hazard,
and the accident occurred within an identifiable zone
of risk.
In its memorandum of decision, the court reasoned
that the mode of operation rule was inapplicable to the
facts of this case because the ‘‘hazardous condition
appear[ed] to have been brought into the store’’ from
the outside, distinguishing this from the ‘‘typical case
in which a hazardous condition is caused by the spilling
or dropping of an item for sale’’ already within the
store. Further, the court found that, even if the mode of
operation rule applied, the defendant took reasonable
precautions to ‘‘keep its premises free of hazardous con-
ditions.’’
On appeal, the plaintiff claims that the court improp-
erly held that the mode of operation rule did not extend
to the defendant’s ‘‘pet-friendly method of operation.’’
She argues that her case falls under the rule because
allowing leashed pets into the store created an inher-
ently foreseeable risk of pet messes, and the leashed
pets should be considered ‘‘moving’’ zones of risk.
We disagree.
The plaintiff’s principal claim concerns the proper
construction and application of the mode of operation
rule within premises liability. Whether the trial court
properly construed and applied the mode of operation
rule is a question of law over which we exercise plenary
review. See Fisher v. Big Y Foods Inc., 298 Conn. 414,
424, 3 A.3d 919 (2010).
It is undisputed that a retail store owes a duty to a
business invitee to maintain its premises ‘‘in a reason-
ably safe condition.’’ Baptiste v. Better Val-U Super-
market, Inc., supra, 262 Conn. 140. Generally, to prevail
on a negligence claim as a business invitee in a premises
liability case, ‘‘it [is] incumbent upon [the plaintiff] 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.
The mode of operation rule is a narrow exception to
the traditional notice requirement and arose from our
Supreme Court’s decision in Kelly v. Stop & Shop, Inc.,
supra, 281 Conn. 770. In Kelly, a supermarket patron
slipped and fell on a piece of lettuce that dropped from
a self-service salad bar located in the store. Id. Although
there was no evidence that the store had notice of the
fallen lettuce, the court held that ‘‘it is appropriate to
hold [self-service businesses] responsible for injuries
to customers that are a foreseeable consequence of
their use of that merchandising approach unless they
take reasonable precautions to prevent such injuries.’’
(Emphasis omitted.) Id., 786. The court further stated
that ‘‘a plaintiff establishes a prima facie case of negli-
gence upon presentation of evidence that the mode of
operation of the defendant’s business gives rise to a
foreseeable risk of injury to customers and that the
plaintiff’s injury was proximately caused by an accident
within the zone of risk.’’ Id., 791.
Our Supreme Court in Kelly recognized that, in such
circumstances, requiring a plaintiff to prove actual or
constructive notice would be ‘‘unfair and unnecessary’’
because businesses ‘‘should be aware of the potentially
hazardous conditions that arise from the way in which
they conduct their business’’ and customer carelessness
should be expected. Id., 778. The court reasoned that
a store owner’s mode of operation that increases the
risk of ‘‘dangerous, transitory conditions’’ affords notice
when the operation invites inherently foreseeable or
regularly occurring hazards. Id., 780. ‘‘[S]elf-service
operations give store customers additional freedom to
browse and select the merchandise they desire, they
also pose foreseeable hazards to those customers, who
are generally less careful than store employees in han-
dling the merchandise. . . . Essentially, the courts
have recognized that stores engaging in foreseeably
hazardous self-service operations may be deemed to
have constructive notice of those conditions when they
result in injury.’’ (Internal quotation marks omitted.)
Id., 779–80.
Two subsequent cases have clarified the scope of the
mode of operation rule. First, in Fisher v. Big Y Foods
Inc., supra, 298 Conn. 437, our Supreme Court
expressed a concern about an overly expansive applica-
tion of the mode of operation rule, emphasizing that
‘‘the exception is meant to be a narrow one’’ because
nearly every business enterprise produces some risk
of customer interference. Id. In Fisher, a supermarket
customer slipped and fell on a puddle of liquid located
in one of the store’s aisles. Id., 416–17. The puddle was
purportedly from a fruit cocktail container that fell from
the store’s shelf. The plaintiff pursued a claim under
the mode of operation rule and prevailed at trial. Id., 417.
On appeal, our Supreme Court reversed the judgment
and held that ‘‘self-service merchandising itself’’ does
not fall under the mode of operation rule. Id., 424. The
court recognized that adopting such a rule would signifi-
cantly broaden the rule’s underlying intent. Id. The court
reasoned that the rule applied to businesses that
employed a more specific method of operation within
the general business environment that is distinct from
the ordinary, inevitable way of conducting the sort of
commerce in which the business is engaged. Id., 427.
The court emphasized that the rule does not extend
to ‘‘all accidents caused by transitory hazards in self-
service retail establishments, but rather, only to those
accidents that result from particular hazards that occur
regularly, or are inherently foreseeable, due to some
specific method of operation employed on the prem-
ises.’’ Id., 423.
Second, in Konesky v. Post Road Entertainment, 144
Conn. App. 128, 144, 72 A.3d 1152 (2013), this court
clarified both that the mode of operation rule required
an identifiable zone of risk and that it did not impose
liability on a business if the business’ mode of operation
was not appreciably different from that of similar busi-
nesses. In Konesky, a bar patron was injured after she
slipped and fell on a puddle of water. Id, 131. The puddle
was created from ‘‘beer tubs’’ the bar used to serve cold
drinks. Id. The service of beer from these tubs was
presented as the defendant’s mode of operation. Id. At
trial, the plaintiff successfully claimed that the defen-
dant’s mode of operation created the ‘‘slippery and haz-
ardous’’ condition. Id.
On appeal, this court disagreed, rejecting the notion
that a defendant incurs liability ‘‘under the mode of
operation doctrine simply by serving chilled beer.’’ Id.,
142–43. This court did not accept that the defendant’s
‘‘ice tubs’’ constituted ‘‘an inherently hazardous mode
of operation’’ because ‘‘the entire [premises] would
become a zone of risk simply because drinks do some-
times spill or otherwise produce slippery surfaces.’’
(Internal quotation marks omitted.) Id., 143. We
explained that such an expansive zone of risk ‘‘would
be inconsistent with the Supreme Court’s admonition
that the mode of operation rule is meant to be a narrow
exception to the notice requirements under traditional
premises liability.’’ Id., 143–44.
From these three cases, we distill three overarching
requirements for the mode of operation rule to apply:
(1) the defendant must have a particular mode of opera-
tion distinct from the ordinary operation of a related
business; (2) that mode of operation must create a regu-
larly occurring or inherently foreseeable hazard; and
(3) the injury must happen within a limited zone of risk.
The facts of the present case do not meet any of
these three requirements. First, the rule is inapplicable
when a particular mode of operation is not considerably
different from that of similarly operated businesses.
See id., 141. The plaintiff here argues that the defen-
dant’s pet friendly mode of operation created a reason-
ably foreseeable pet mess hazard that caused the
plaintiff’s injuries. The rule applies when a business
implements ‘‘a more specific method of operation
within the general business environment that is distinct
from the ordinary, inevitable way of conducting the
sort of commerce in which the business is engaged.’’
(Emphasis omitted; internal quotation marks omitted.)
Id., 139. Here, 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.’’ Id., 139–40. The record does not demonstrate
a specific method of operation that deviates from the
general operation of similar businesses.3
Second, the mode of operation rule may substitute for
notice to a retailer when the store’s mode of operation
invites careless customer interference, creating an
expected, foreseeable hazard. Kelly v. Stop & Shop,
Inc., 281 Conn., supra, 788. Here, the primary distinction
from the typical mode of operation case is the lack of
a causal connection between the store’s conduct and
foreseeable careless customer interference in a particu-
lar zone of risk.4 Although the defendant’s store allowed
customers to bring their leashed pets inside and being
pet friendly is one of their ‘‘core values,’’ that policy
alone does not sufficiently relinquish the plaintiff from
proving actual or constructive notice of the hazard. See
Konesky v. Post Road Entertainment, supra, 144 Conn.
App. 137–38. In our view, animal messes are not inher-
ently foreseeable hazardous conditions resulting from
a pet friendly business policy, particularly when the
record 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.5 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. See Id.
Third, application of the mode of operation rule ‘‘is
meant to be a narrow one, and applies only to those
areas where the risk of injury is continuous or fore-
seeably inherent’’ as a result of a store’s mode of opera-
tion. (Emphasis added; internal quotation marks
omitted.) Fisher v. Big Y Stores, Inc., supra, 298 Conn.
437. These ‘‘areas’’ have been construed as a zone of
risk where an owner should take extra precautions
based on its mode of operation. Id. The underlying
rationale is to impose liability for specific areas where
there is a reasonably foreseeable risk. Id. In Kelly, our
Supreme Court stated that it is ‘‘unfair and unnecessary’’
to require proof of actual or constructive notice under
the mode of operation rule; it would be equally unfair
to impose liability under the mode of operation when
there is no identifiable zone of risk of which proprietors
should be on notice. Kelly v. Stop & Shop, Inc., supra,
281 Conn. 778.
The zone of risk identified in Kelly was the area
located near the salad bar where the plaintiff’s injury
occurred. Id., 796. Salad bar customers frequently
spilled lettuce onto the floor and thus created a zone
of risk for grocery store patrons. Id., 774. Conversely,
in Konesky, we held that there was no liability under
the mode of operation rule because otherwise the entire
establishment would be rendered a zone of risk, thus
rendering the zone of risk requirement ‘‘superfluous.’’
Konesky v. Post Road Entertainment, supra, 144 Conn.
App. 143.
Under the circumstances before us, there is no identi-
fiable zone of risk where the defendant should be on
notice of continuous or inherently foreseeable hazards.
The plaintiff contends that leashed animals should be
considered ‘‘moving targets’’ and that the zone of risk
should be construed as where the pet messes occurred.
This simply does not comport with our understanding
of the zone of risk requirement. Leashed animals are
found throughout the store on a daily basis and adopting
the plaintiff’s position 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, measur-
able 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.
Without specific proof of a particular zone of risk, we
are unwilling to adopt the plaintiff’s proposed standard.
In fact, the ‘‘moving target’’ theory raised by the plain-
tiff was discussed in Konesky, where patrons walked
around the bar with cold drinks that dripped on the
floor. Konesky v. Post Road Entertainment, supra, 144
Conn. App. 141. In Konesky, this court limited the zone
of risk because ‘‘[i]f the mode of operation rule could
be satisfied by [customers] carrying wet glasses, there
would be no effective limitation on the application of
the rule.’’ Id., 144. Ultimately, the plaintiff’s ‘‘moving
target’’ theory fails for the same reasons; the zone of
danger would encompass the entire store.
In sum, merely allowing a leashed pet into the defen-
dant’s store does not give rise to the conduct against
which the rule intends to impose liability. See Fisher
v. Big Y Foods, Inc., supra, 298 Conn. 423. Proving
actual or constructive notice of a hazard remains an
element of a negligence action when a business is con-
ducted in the ordinary manner of similar businesses,
as here. Further, although the zone of risk need not
be limited to a precisely measurable area, it cannot
encompass the entire premises of a store. Finally, the
rule requires foreseeable hazards, not merely possible
ones. Pet messes are undoubtedly possible under a pet
friendly mode of operation, but possibilities alone do
not give rise to the type of regularly occurring or inher-
ently foreseeable hazardous conditions required by the
mode of operation rule.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff raised three claims on appeal: (1) the court improperly held
that the mode of operation rule did not apply at all on the facts of this case;
(2) the court erroneously found that, even if the rule did apply, the plaintiff
had not established a prima facie case of negligence under it; and (3) the
court erroneously found that, even if the plaintiff had established prima
facie negligence, the defendant rebutted it with evidence of reasonable
precautions. In light of our resolution of the plaintiff’s first claim, we need
not address her second and third claims.
2
Smith testified that ‘‘approximately one to two customers per week
would report a puddle’’ caused by a pet.
3
In her appellate brief, the plaintiff cites an unpublished Washington case,
Depuy v. Petsmart, 155 Wash. App. 1047 (Wash. Ct. App. 2010), for the
proposition that it is instructive to the facts at issue. Notwithstanding the
absence of any precedential value of the case in Connecticut, Depuy is
categorically distinct from this case. The defendant in Depuy allowed pets
into its store, but the pets roamed free without leashes. Further, the pets
frequently knocked over wet floor signs and pet messes occurred at a
substantially higher rate. The defendant’s mode of operation diverged from
the general operation of a pet store because it was aware of the hazards
caused by its ‘‘autonomous pet’’ policy. The defendant operated its business
in a way that invited customer carelessness and, as a result, regularly caused
hazards. We do not find the case ‘‘instructive’’ as the plaintiff claims, nor
does it assist us in understanding the rule’s application.
4
The trial court also noted that the mode of operation rule typically
involves hazardous conditions ‘‘caused by the spilling or dropping of an
item for sale that is already within the store.’’ Because that particular claim
was not squarely raised in this case, we do not reach the question of whether
that distinction is legally relevant.
5
The court noted that ‘‘the evidence demonstrated that there were only
approximately one to two animal messes per week in the defendant’s store
and that the plaintiff’s was the only incidence of a slip and fall in animal
urine during [the store manager’s] six years at the store.’’