Hill v. OSJ of Bloomfield, LLC ( 2020 )

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ALICIA HILL v. OSJ OF BLOOMFIELD, LLC
(AC 42397)
DiPentima, C. J., and Moll and Bear, Js.*
Syllabus
The plaintiff, a business invitee of the defendant company, brought a prem-
ises liability action against the defendant, seeking damages for personal
injuries she sustained when two empty boxes fell off a shelf and struck
her in the head and shoulder as she was walking in an aisle of the
defendant’s store. After a trial to the court, the trial court rendered
judgment for the plaintiff. The court applied the mode of operation rule
enunciated in Kelly v. Stop & Shop, Inc. (281 Conn. 768), and concluded
that the boxes fell and struck the plaintiff as a result of the defendant’s
negligence. The court determined that the store manager, M, and another
employee, R, had been stocking merchandise in an adjacent aisle when
a box on the top shelf of that aisle toppled over and into the boxes on
the top shelf of the aisle in which the plaintiff was walking, thereby
causing the boxes to fall off the shelf and onto the plaintiff. On appeal,
the defendant claimed that the trial court improperly applied the mode
of operation rule. Held that the evidence did not support the imposition
of liability under the mode of operation rule or the affirmative act rule,
under which proof of notice is not necessary because the defendant
itself created the unsafe condition, as there was no evidence as to what
caused the boxes to fall on the plaintiff: the plaintiff, relying on the mode
of operation rule, failed to make out a prima facie case of negligence,
as the record did not demonstrate that the defendant had a specific
method of operation that was different from the general operation of
a similar business, the only evidence about the regularity of any hazard
came from M, who was unaware of merchandise ever falling onto a
customer, the potential for which did not give rise to a regularly
occurring or inherently foreseeable hazard, and the record was devoid
of evidence that the plaintiff’s injuries occurred within a limited zone
of risk where the risk of injury was continuous or foreseeably inherent
as a result of the mode of operation at issue; moreover, the evidence
was insufficient to establish that an affirmative act on the part of the
defendant caused the boxes to fall on the plaintiff, as M’s testimony
that neither he nor R touched the top shelf of the aisle in which they
were working was not contradicted by any other evidence, there was
no evidence that their actions in that aisle disrupted the boxes on the
top shelf, and the court, even if it disbelieved M’s statements, was not
allowed to infer the opposite proposition, much less to infer that M and
R negligently knocked over those boxes into the boxes that struck the
plaintiff, and a photograph of the shelving that the plaintiff took following
the incident was insufficient to permit an inference that M and R engaged
in an affirmative act that led to the boxes falling on her.
Argued January 9—officially released September 15, 2020
Procedural History
Action to recover damages for the defendant’s alleged
negligence, brought to the Superior Court in the judicial
district of Hartford and tried to the court, Gordon, J.;
judgment for the plaintiff, from which the defendant
appealed to this court. Reversed; judgment directed.
Bruce H. Raymond, with whom was Evan K. Buchb-
erger, for the appellant (defendant).
Domenic D. Perito, with whom, on the brief, was
Richard E. Joaquin, for the appellee (plaintiff).
Opinion
MOLL, J. ‘‘Drawing logical deductions and making
reasonable inferences from facts in evidence, whether
that evidence be oral or circumstantial, is a recognized
and proper procedure in determining the rights and obli-
gations of litigants, but to be logical and reasonable they
must rest upon some basis of definite facts, and any
conclusion reached without such evidential basis is a
mere surmise or guess.’’ (Internal quotation marks omit-
ted.) Paige v. St. Andrew’s Roman Catholic Church
Corp., 250 Conn. 14, 34, 734 A.2d 85 (1999). This impor-
tant principle lies at the heart of this premises liability
appeal. The defendant, OSJ of Bloomfield, LLC, doing
business as Ocean State Job Lot, appeals from the judg-
ment of the trial court, rendered after a bench trial, in
favor of the plaintiff, Alicia Hill, for injuries she sus-
tained when two empty cardboard boxes fell onto her
head and shoulder from the top shelf of the aisle she
was browsing. On appeal, the defendant claims that the
trial court (1) improperly applied the mode of operation
rule as a basis for finding the defendant liable in negli-
gence, and (2) erroneously found that the defendant’s
merchandise stacking methods caused the boxes to fall
on the plaintiff.1 The plaintiff argues that the judgment
should be affirmed because she proved her premises
liability claim under the affirmative act rule. We con-
clude that the evidence adduced at trial does not sup-
port the imposition of liability on the basis of the mode
of operation rule or the affirmative act rule. Accord-
ingly, we reverse the judgment of the trial court and
remand the case with direction to render judgment for
the defendant.
The trial court’s memorandum of decision sets forth
the following recitation, which is relevant to our resolu-
tion of this appeal. ‘‘The plaintiff testified that [on July
1, 2015] she was walking down the stationery aisle of
the [defendant’s] store when two empty boxes fell off
of a shelf to her right and struck her in the head and
right shoulder. [Devin] Gordon, [another shopper in the
store], testified that he was in the same aisle and saw
the boxes fall off the shelf and strike the plaintiff. The
plaintiff testified that prior to the boxes falling on her,
she saw two employees of the defendant stocking mer-
chandise in the Internet coupon aisle directly adjacent
to the stationery aisle. [The defendant’s store manager,
Aron Moore] admitted that he and another employee
were stocking merchandise in the Internet coupon aisle
in the moments preceding the incident, and that as soon
as they heard a loud noise, they entered the stationery
aisle where they saw the plaintiff and Gordon, who was
holding one of the boxes.
‘‘Moore testified that the top shelf of the Internet
coupon aisle is seven feet tall and is used as a ‘profile
shelf’ to hold overstocked merchandise. According to
Moore, the top shelf of the Internet coupon aisle is
twelve inches wide and six inches higher than the top
shelf of the stationery aisle. The plaintiff introduced a
photograph that she took within minutes of the accident
showing the top shelves of the stationery aisle and the
Internet coupon aisle. The photograph shows a series
of boxes containing nine inch fans stacked one on top
of the other on the top shelf of the Internet coupon
aisle. The photograph also shows one of the boxes
containing the nine inch fans hanging over the box
below it and cantilevered in the direction of the statio-
nery aisle. The [photograph] also shows a gap in the
top row of stacked nine inch fans in a location directly
adjacent to the top shelf of the stationery aisle where
the empty boxes had been displayed immediately before
they fell. The [photograph] also shows one of the nine
inch fan boxes in this precise location.’’
On June 13, 2017, the plaintiff commenced this action,
alleging that she sustained injuries to her head, neck,
and right shoulder as a result of the boxes falling onto
her and that the incident was caused by the negligence
of the defendant. On November 8, 2018, the case was
tried to the court. Three witnesses testified: Moore (the
store manager), Gordon (the eyewitness), and the plain-
tiff. Thereafter, the parties submitted posttrial briefs.
On December 7, 2018, the trial court issued a memoran-
dum of decision rendering judgment in favor of the
plaintiff. Setting forth the principles from this court’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), the court concluded that the plaintiff ‘‘sus-
tained her burden of proving by a fair preponderance
of the evidence that the empty display boxes fell and
struck the plaintiff as a result of the defendant’s negli-
gence.’’ Specifically, the court found that ‘‘Moore and
another employee of the defendant were stocking mer-
chandise in the Internet coupon aisle when one of the
nine inch fan boxes on the top shelf of the Internet
coupon aisle toppled over and into the display boxes
on the top shelf of the stationery aisle, thereby causing
the display boxes to fall off the shelf and onto the
plaintiff.’’ The court awarded the plaintiff $23,001.96 in
past medical expenses and $7500 for pain and suffering
for a total of $30,501.96 in damages. This appeal fol-
lowed. Additional facts will be set forth as necessary.
The defendant principally claims on appeal that the
trial court improperly applied the mode of operation
rule in finding the defendant liable. Specifically, the
defendant maintains that the record is devoid of any
evidence that (1) the defendant employed a particular
mode of operation that is distinct from a similar busi-
ness, (2) such mode of operation created a regularly
occurring or inherently foreseeable hazard, and (3) the
plaintiff’s injury occurred within a limited zone of risk.
We agree with the defendant and conclude that the
evidence at trial did not support the application of the
mode of operation rule.
We begin with the standard of review and general
principles of premises liability. ‘‘[T]he scope of our
appellate review depends [on] the proper characteriza-
tion of the rulings made by the trial court. To the extent
that the trial court has made findings of fact, our review
is limited to deciding whether such findings were clearly
erroneous. When, however, the trial court draws con-
clusions of law, our review is plenary and we must
decide whether its conclusions are legally and logically
correct and find support in the facts that appear in the
record.’’ (Internal quotation marks omitted.) Kelly v.
Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249
(2007). ‘‘A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.’’ (Internal quotation marks omitted.) Lyme
Land Conservation Trust, Inc. v. Platner, 325 Conn.
737, 755, 159 A.3d 666 (2017). ‘‘In a case tried before a
court, the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific
testimony. . . . On appeal, we will give the evidence
the most favorable reasonable construction in support
of the verdict to which it is entitled.’’ (Internal quotation
marks omitted.) Coppedge v. Travis, 187 Conn. App.
528, 532, 202 A.3d 1116 (2019).
‘‘A business owner owes its invitees a duty to keep
its premises in a reasonably safe condition. . . . In
addition, the possessor of land must warn an invitee
of dangers that the invitee could not reasonably be
expected to discover. . . . Nevertheless, [f]or [a] plain-
tiff to recover for the breach of a duty owed to [her]
as [a business] invitee, it [is] incumbent upon [her] to
allege and prove that the defendant either had actual
notice of the presence of the specific unsafe condition
which caused [her 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.’’2 (Citations
omitted; internal quotation marks omitted.) DiPietro v.
Farmington Sports Arena, LLC, 306 Conn. 107, 116–17,
49 A.3d 951 (2012). As this court recently explained, to
succeed in a traditional negligence action that is based
on premises liability, ‘‘the plaintiff must prove (1) the
existence of a defect, (2) that the defendant knew or
in the exercise of reasonable care should have known
about the defect and (3) that such defect had existed
for such a length of time that the [defendant] should,
in the exercise of reasonable care, have discovered it in
time to remedy it.’’ (Internal quotation marks omitted.)
Bisson v. Wal-Mart Stores, Inc., 184 Conn. App. 619,
628, 195 A.3d 707 (2018).
There exist at least two circumstances, however, in
which a plaintiff, as a business invitee, may recover in
a premises liability case without proof that the business
had actual or constructive notice of a dangerous condi-
tion alleged to have caused the plaintiff injury. In con-
nection with the first exception, in Kelly v. Stop & Shop,
Inc., supra, 281 Conn. 768, our Supreme Court adopted
‘‘the so-called ‘mode of operation’ rule, a rule of prem-
ises liability pursuant to which a business invitee who
is injured by a dangerous condition on the premises
may recover without proof that the business had actual
or constructive notice of that condition if the business’
chosen mode of operation creates a foreseeable risk
that the condition regularly will occur and the business
fails to take reasonable measures to discover and
remove it.’’3 Id., 769–70. Under the mode of operation
rule, ‘‘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. The defendant may rebut the
plaintiff’s evidence by producing evidence that it exer-
cised reasonable care under the circumstances. Of
course, the finder of fact bears the ultimate responsibil-
ity of determining whether the defendant exercised
such care. We underscore, as most other courts have,
that the defendant’s burden in such cases is one of
production, and that the ultimate burden of persuasion
to prove negligence—in other words, that the defendant
failed to take reasonable steps to address a known
hazard—remains with the plaintiff.’’ (Internal quotation
marks omitted.) Id., 791–92.
On at least two occasions following our Supreme
Court’s decision in Kelly, our appellate courts have
clarified the parameters of the mode of operation rule.
First, shortly after Kelly, our Supreme Court refined its
adoption of the rule, stating that ‘‘the exception is meant
to be a narrow one . . . .’’ Fisher v. Big Y Foods, Inc.,
298 Conn. 414, 437, 3 A.3d 919 (2010). Specifically, in
Fisher, the court clarified that ‘‘the mode of operation
rule, as adopted in Connecticut, does not apply gener-
ally 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. Stated differently, ‘‘self-service merchan-
dising itself’’ does not fall under the mode of operation
rule. Id., 424. The rule applies only to specific areas of
an establishment where the risk of injury is continuous
or foreseeably inherent by virtue of the nature of the
business or mode of operation. Id., 437. ‘‘Notably, [our
Supreme Court] included the requirement that a plain-
tiff’s injury occur within a ‘zone of risk.’ . . . If a ‘mode
of operation’ could be self-service merchandising itself,
then an entire store necessarily would be rendered a
‘zone of risk’ due to the readily established fact that
merchandise, as a general matter, sometimes falls and
breaks. Accordingly, the requirement of establishing
that an injury occurred within some ‘zone of risk’ essen-
tially would be rendered superfluous.’’ (Citation omit-
ted.) Id., 424.
Second, in Konesky v. Post Road Entertainment, 144
Conn. App. 128, 72 A.3d 1152, cert. denied, 310 Conn.
915, 76 A.3d 630 (2013), this court clarified that the
mode of operation rule requires not only an identifiable
zone of risk but also a business mode of operation that
is appreciably different from that of a similar business.
Id., 144. Applying these principles, in Konesky, this
court rejected the proposition that a plaintiff, who was
injured after she slipped and fell on a puddle of water
created from ‘‘ ‘beer tub[s]’ ’’ used by a nightclub to
serve chilled beer, could prevail under the mode of
operation rule. Id., 142–43. This court reasoned that the
defendant’s ‘‘service of beer’’ did not constitute ‘‘an
inherently hazardous mode of operation’’ because ‘‘the
entire [premises] would become a zone of risk simply
because drinks do sometimes spill or otherwise pro-
duce slippery surfaces.’’ (Internal quotation marks omit-
ted.) Id., 143. The court explained that such an expan-
sive 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 law.’’
Id., 143–44.
As a result of those clarifications, this court has dis-
tilled three requirements for the mode of operation rule
to apply: ‘‘(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.’’ Porto v. Petco Animal Supplies Stores, Inc.,
167 Conn. App. 573, 581, 145 A.3d 283 (2016). We return
to these requirements subsequently in this opinion.
The second exception to the requirement in a prem-
ises liability case that a business invitee must prove
that the business had actual or constructive notice of a
dangerous condition alleged to have caused the plaintiff
injury is the affirmative act rule. ‘‘Under an affirmative
act theory of negligence, if the plaintiff alleges that the
defendant’s conduct created the unsafe condition [on
the premises], proof of notice is not necessary. . . .
That is because when a defendant itself has created a
hazardous condition, it safely may be inferred that [the
defendant] had knowledge thereof.’’ (Emphasis added;
internal quotation marks omitted.) DiPietro v. Farm-
ington Sports Arena, LLC, supra, 306 Conn. 122.
‘‘Rather than acting as an alternative to notice, the affir-
mative act rule allows an inference of notice when
circumstantial evidence shows that the defendant knew
or should have known of the dangerous condition
because it was a foreseeably hazardous one that the
defendant itself created.’’ Id., 124. Although closely
related, affirmative act cases involving injuries from
negligently displayed merchandise are principally dis-
tinguishable from mode of operation cases in that the
injury in an affirmative act case ‘‘is not triggered by an
intervening customer’s act.’’ Id., 122 n.10. ‘‘Analysis of
the affirmative act rule as it has been applied shows
that it permits the inference of actual notice only when
the defendant or its employees created an obviously
hazardous condition.’’ Id., 123; see, e.g., Tuite v. Stop &
Shop Cos., 45 Conn. App. 305, 308, 696 A.2d 363 (1997)
(slip and fall case in which employee left water in super-
market aisle after watering plants); Fuller v. First
National Supermarkets, Inc., 38 Conn. App. 299, 301–
303, 661 A.2d 110 (1995) (slip and fall case in which
employees left pricing stickers on floor).
At this juncture, we pause to observe the following
with regard to the liability theory on which the plaintiff
proceeded. First, our careful review of the record
reveals that at no time did the plaintiff explicitly state
before the trial court that she was seeking to establish
the defendant’s negligence on the basis of traditional
premises liability doctrine, the mode of operation rule,
or the affirmative act rule. During trial and in the plain-
tiff’s posttrial brief, the plaintiff focused almost exclu-
sively on Meek v. Wal-Mart Stores, Inc., supra, 72 Conn.
App. 467, claiming that the Meek decision is ‘‘on all
fours’’ with the present case. Our Supreme Court
expressly has recognized Meek as a case applying the
mode of operation rule; see footnote 3 of this opinion;
see also Kelly v. Stop & Shop, Inc., supra, 281 Conn.
785 (‘‘[a]lthough the Appellate Court did not expressly
adopt the mode of operation rule in Meek, the analysis
and reasoning employed in that case is no different
from the analysis and reasoning that the court would
have used it if explicitly had adopted the mode of opera-
tion rule’’). Thus, by relying, essentially exclusively,
on this court’s decision in Meek, we conclude that the
plaintiff was proceeding under the mode of operation
rule. Second, the trial court did not explicitly state
whether it was finding in the plaintiff’s favor on the basis
of traditional premises liability principles, the mode of
operation rule, or the affirmative act rule, and the trial
court’s memorandum of decision similarly is limited to
a discussion of Meek. Here, too, in light of the trial
court’s exclusive reliance on Meek, we conclude that
the trial court was applying the mode of operation rule
in its liability finding against the defendant. Accord-
ingly, we begin our analysis by considering the applica-
bility of the mode of operation rule.4
Our review of the evidence presented at trial, viewed
in the light most favorable to the plaintiff, reveals that
the evidence did not support the application of the
mode of operation rule. We address each requirement
of the mode of operation rule with dispatch because,
notably, the plaintiff does not contend in her appellate
brief that the mode of operation rule was satisfied.
First, there was no evidence that the defendant
employed a particularized mode of operation with
respect to the stacking of the fans or the empty card-
board boxes (1) that was distinct from the ordinary
operation of a related business and (2) that either
resulted in a regularly occurring hazardous condition
or rendered some hazardous condition inherently fore-
seeable. See Konesky v. Post Road Entertainment,
supra, 144 Conn. App. 144. In addition, as stated pre-
viously in this opinion, ‘‘self-service merchandising
itself’’ cannot be a negligent mode of operation. Fisher
v. Big Y Foods, Inc., supra, 298 Conn. 424. Here, the
record simply does not demonstrate a specific method
of operation that is different from the general operation
of a similar business. See Porto v. Petco Animal Sup-
plies Stores, Inc., supra, 167 Conn. App. 582 (concluding
that first requirement was not met where defendant
operated as any other pet store would by permitting
leashed animals into store). Second, ‘‘the store’s mode
of operation [must invite] careless customer interfer-
ence, creating an expected, foreseeable hazard.’’ Id.
Here, the only evidence about the regularity of any
hazard came from Moore, who explained that he was
unaware of merchandise ever falling onto a customer.
Furthermore, even where there is a potential for hazard,
‘‘that potential alone does not give rise to a regularly
occurring or inherently foreseeable hazard.’’ Id., 583.
Third, the mode of operation rule applies only to ‘‘those
areas where risk of injury is continuous or foreseeably
inherent’’ as a result of the mode of operation at issue.
(Internal quotation marks omitted.) Fisher v. Big Y
Foods, Inc., supra, 437. In the present case, the record
is devoid of evidence that the plaintiff’s alleged injuries
occurred within a limited zone of risk.5 We also note
at this juncture that the photograph of the shelving
taken shortly after the incident, on which the trial court
relied as described previously in this opinion, does not
provide a sufficient evidential basis for any of these
requirements.
In short, there was simply no evidence as to what
caused the empty cardboard boxes to fall on the plaintiff
(i.e., whether they had been stacked improperly by an
employee of the defendant, whether the fans had been
negligently stacked or handled in a manner that caused
one or more of them to fall into the empty cardboard
boxes that in turn fell on the plaintiff, and/or whether
another customer had interfered with the placement of
any of the foregoing merchandise leading to the incident
at issue).6
In sum, the plaintiff failed to make out a prima facie
case of negligence under the mode of operation rule
and, as stated previously, she does not contend other-
wise in her appellate brief. Instead, she asserts that
the judgment should be affirmed on the basis of the
affirmative act rule.7
Specifically, the plaintiff contends that there were
two affirmative acts that support the court’s conclusion:
(1) the stacking of the fan boxes in a precarious manner,
and (2) the defendant’s employees moving merchandise
in the adjacent aisle. The defendant argues that the
court did not actually find that any affirmative act on
the part of the defendant’s employees caused the boxes
to fall onto the plaintiff and that there was no evidence
to support such a finding in any event. We agree with
the defendant.
As an initial matter, we begin with the relevant lan-
guage from the trial court’s decision: ‘‘Moore and
another employee of the defendant were stocking mer-
chandise in the Internet coupon aisle when one of the
nine inch fan boxes on the top shelf of the Internet
coupon aisle toppled over and into the display boxes
on the top shelf of the stationery aisle, thereby causing
the display boxes to fall off the shelf and onto the
plaintiff.’’ A careful reading of the foregoing finding
reveals that the trial court did not in fact make a finding
that connects, other than temporally, the employees’
activity in the Internet coupon aisle to the fall of the
display boxes.
Even if such language could be construed, however,
to reflect a finding of an affirmative act on the part
of the defendant’s employees that caused the empty
cardboard boxes to fall on the plaintiff, the evidence
presented at trial, viewed in the light most favorable
to the plaintiff, was insufficient to support it. As stated
previously in this opinion, three witnesses testified.
Gordon, the sole eyewitness, testified that he saw two
boxes fall from the top shelf of the stationery aisle onto
the plaintiff, who was pushing a shopping carriage at
the time, not reaching for or touching any merchandise
on the shelving, and remained standing. With regard to
any activity taking place in the adjacent aisle, Gordon
testified that two male employees of the store had
passed him, and he heard them talking in the adjacent
aisle. He did not know why the boxes fell.
Moore, the store manager, testified that, on the day
of the incident, he was training another employee, Kevin
Reilly. Moore explained that he and Reilly were ‘‘[r]eset-
ting’’ the Internet coupon aisle (i.e., the location in the
store where items advertised for sale through the
Internet are displayed).8 Moore unequivocally testified
that this ‘‘[r]esetting’’ activity did not involve merchan-
dise on the top shelves; in Moore’s words, ‘‘we don’t
touch the top shelves.’’ He explained that the top shelf
of the Internet coupon aisle did not contain merchan-
dise that was taken on and off because it was a main
aisle of the store and that it was used to display product
that looked more appealing than so-called ‘‘top stock,’’
meaning extra merchandise used to continuously refill
the aisles. Moore testified that he and Reilly were work-
ing in the Internet coupon aisle when they heard an
unidentified sound in the stationery aisle and went
around the corner, encountering the plaintiff and Gor-
don, who said that the boxes fell from the top shelf.
Moore further testified that the ‘‘home location’’ of the
empty cardboard boxes was the top shelf of the statio-
nery aisle, which was approximately six and one-half
feet tall and intentionally accessible to customers inter-
ested in interacting with the merchandise for sale. He
could not explain how the boxes fell onto the plaintiff.
The plaintiff also testified in part as follows. Just
prior to her arrival at the stationery aisle, she passed the
Internet coupon aisle and saw two employees stocking
merchandise there. Once in the stationery aisle, the
plaintiff did not see the display boxes before they fell,
nor did she see any employee handling the display boxes
that fell. The plaintiff testified that the display boxes
‘‘flew off [the shelf] by themselves.’’
The evidence presented at trial, viewed in the light
most favorable to the plaintiff, was insufficient to estab-
lish that an affirmative act on the part of the defendant
caused the empty boxes to fall on the plaintiff. Moore’s
testimony that neither he nor Reilly ever touched the
top shelf of the Internet coupon aisle was not contra-
dicted by any other evidence. Although the court rea-
sonably could find that Moore and Reilly were resetting
the Internet coupon aisle at the time of the incident on
the basis of the plaintiff’s observations of two men
stocking shelves just prior to the incident, there was
no evidence to suggest that their specific actions in that
aisle disrupted the fan boxes on the top shelf. Finding
a negligent act on their part required the court to engage
in impermissible speculation. Although the court was
free to disbelieve Moore’s testimony regarding the
Internet coupon aisle’s top shelf, it was not permitted
to ‘‘draw a contrary inference on the basis of that disbe-
lief.’’ Paige v. St. Andrew’s Roman Catholic Church
Corp., supra, 250 Conn. 18; see also Novak v. Anderson,
178 Conn. 506, 508, 423 A.2d 147 (1979). Therefore,
Moore’s uncontested statements that neither he nor
Reilly handled the fan boxes on the top shelf of the
aisle they were resetting—even if disbelieved—did not
allow the court to infer the opposite proposition, much
less infer that they negligently knocked over those
boxes into the display boxes, which ultimately struck
the plaintiff.9 Moreover, the photograph of the shelving
following the incident, on which the trial court relied
in finding the defendant negligent, is insufficient to per-
mit an inference that the defendant’s employees
engaged in an affirmative act that led to the display
boxes falling on the plaintiff.
The judgment is reversed and the case is remanded
with direction to render judgment for the defendant.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Because we consider these claims to be analytically related, we address
them together.
2
The parties do not dispute that the plaintiff was a business invitee of
the defendant.
3
As part of its analysis, the court stated that ‘‘in Meek v. Wal-Mart Stores,
Inc., supra, 72 Conn. App. 476–79, the Appellate Court recently employed
a mode of operation analysis in the context of a claim arising out of the
alleged negligence of a large, self-service department store.’’ Kelly v. Stop &
Shop, Inc., supra, 281 Conn. 783.
4
We also note that, at the commencement of trial, the trial court suggested,
sua sponte, that the doctrine of res ipsa loquitur might apply. The trial
court’s decision does not address res ipsa loquitur, nor do the parties’
appellate briefs. Thus, we do not address it further.
5
In addition, the mode of operation rule, as it exists under Connecticut
law, presumes that there was some customer interference. See Kelly v.
Stop & Shop, Inc., supra, 281 Conn. 786–90; Konesky v. Post Road Entertain-
ment, supra, 144 Conn. App. 141–42 n.11. Here, the plaintiff does not contend,
and there was no evidence presented to suggest, that another customer
interfered with the fans or empty cardboard boxes at all. Thus, the court’s
application of the mode of operation rule in this case was flawed for this
independent reason. See Konesky v. Post Road Entertainment, supra, 144.
6
Instead, Moore testified to the following. At some point immediately
prior to the incident, Moore and another store employee, Kevin Reilly, had
completed a safety walk, whereby they inspected the condition of various
aisles in the store and discovered no hazards of any sort. No concern had
ever been raised with respect to the display of the boxes that struck the
plaintiff. Moreover, the shelving did not easily move, and bumping into
the shelving in one aisle would not cause something to happen in the
adjacent aisle.
7
Although the plaintiff did not expressly rely on the affirmative act rule
at trial, we nonetheless exercise our discretion to consider the merits of
her argument, which we treat as an alternative ground for affirmance.
8
Moore explained that ‘‘[r]esetting’’ the Internet coupon aisle meant
removing merchandise from the shelves and replacing it with new mer-
chandise.
9
Affirmative act cases from other jurisdictions involving circumstances
that are factually similar to the present case bolster our conclusion. The
Supreme Court of South Carolina considered whether the evidence was
sufficient to support the conclusion that the defendant store created a
dangerous condition when the plaintiff, shortly after removing two cans
from a shelf, was struck in the face by approximately fifteen falling cans.
See Garvin v. Bi-Lo, Inc., 343 S.C. 625, 627–28, 541 S.E.2d 831 (2001). The
court explained that the only evidence produced by the plaintiff related to
the cans’ selling price and reflected that the cans were stacked in their
original boxes and above the plaintiff’s height. Id., 628. That evidence was
insufficient as matter of law to establish that the defendant had created a
dangerous condition because nothing indicated that the goods were defec-
tively stacked, or that the defendant knew of any such defect. Id., 628–29;
see also Vallot v. Logan’s Roadhouse, Inc., 567 Fed. Appx. 723, 726 (11th
Cir. 2014) (restaurant patron who slipped and fell on liquid could not prevail
in negligence action because evidence did not demonstrate that defendant
knew of liquid or caused spill). In Metts v. Wal-Mart Stores, Inc., 269 Ga.
App. 366, 367, 604 S.E.2d 235 (2004), the plaintiff was injured when a number
of boxes containing metal shelving units fell onto her from a display rack.
The plaintiff did not know what caused the boxes to fall, nor did she observe
any employees nearby. Id. The plaintiff produced no evidence with respect
to the boxes’ positioning prior to their fall. Id., 367–68. The court concluded
that the defendant had no knowledge of the hazard because the evidence
revealed that the boxes were stacked properly, and a safety inspection
approximately fifteen minutes prior to the accident revealed no defect. Id.,
367. Therefore, the court concluded that the defendant could not be held
liable on the basis of any affirmative act.