Konesky v. Post Road Entertainment

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1. Konesky v. Post Rd. Entm't, 144 Conn. App. 128

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Konesky v. Post Rd. Entm't

Appellate Court of Connecticut
February 7, 2013, Argued; July 16, 2013, Officially Released
AC 34617
Reporter
144 Conn. App. 128 *; 72 A.3d 1152 **; 2013 Conn. App. LEXIS 357 ***; 2013 WL 3368946
SANDRA KONESKY v. POST ROAD

ENTERTAINMENT ET AL. Case Summary
Overview
HOLDINGS: [1]-Although a nightclub patron alleged
Subsequent History: Appeal denied by Konesky v.
somewhat different specifications of negligent conduct
Post Rd. Entm't, 310 Conn. 915, 76 A.3d 630, 2013
by the premises owner, the specifications all sounded in
Conn. LEXIS 333 (Conn., Sept. 25, 2013)
premises liability and all sought to vindicate the same
essential right, such that the general verdict rule was not
applicable; [2]-The mode of operation rule did not only
apply to self-service businesses or businesses that
Prior History: [***1] Action to recover damages for
included self-service components; [3]-Application of that
personal injuries sustained by the plaintiff as a result of
rule to conclude that the owner's sale of beer from ice-
the named defendant's alleged negligence, and for other
filled tubs created an inherently foreseeable heightened
relief, brought to the Superior Court in the judicial district
risk was improper because the method of serving beer
of New Haven, where Hula's New Haven, LLC, was
was not appreciably different from the methods
substituted as the defendant; thereafter, the court,
necessarily employed by all bars that served cold
Wilson, J., granted in part the substitute defendant's
beverages.
motions in limine seeking to preclude certain evidence;
subsequently, the matter was tried to the jury before
Wilson, J.; verdict and judgment for the plaintiff, from
which the substitute defendant appealed to this court.
Outcome
Judgment reversed; new trial ordered.
Disposition: Reversed; new trial.
LexisNexis® Headnotes
Core Terms
mode of operation, beer, tubs, hazardous, self-service,
foreseeable, general verdict, nightclub, customer,
patrons, method of operation, notice, premises liability,
Civil Procedure > Appeals > Standards of
drinks, supermarket, filled, floor, conditions, quotation,
Review > General Overview
bottle, marks, wet
Evidence > ... > Presumptions > Particular
Page 2 of 12
144 Conn. App. 128, *128; 72 A.3d 1152, **1152; 2013 Conn. App. LEXIS 357, ***1
Presumptions > Regularity same elements. Thus, a plaintiff who attempts to prevail
under either common-law premises liability principles or
Civil Procedure > ... > Jury the mode of operation rule is seeking to vindicate the
Trials > Verdicts > General Verdicts same "essential right"; even though she may allege
somewhat different specifications of negligent conduct
HN1[ ] Appeals, Standards of Review to advance each claim.
In a typical general verdict rule case, the record is silent

regarding whether the jury verdict resulted from the
issue that the appellant seeks to have adjudicated. Civil Procedure > Appeals > Standards of
Under the general verdict rule, if a jury renders a Review > De Novo Review
general verdict for one party, and the party raising a
Torts > ... > Elements > Duty > Foreseeability of
claim of error on appeal did not request interrogatories,
Harm
an appellate court will presume that the jury found every
issue in favor of the prevailing party. Thus, in a case in
Civil Procedure > Appeals > Standards of
which the general verdict rule operates, if any ground for
Review > Questions of Fact & Law
the verdict is proper, the verdict must stand; only if
every ground is improper does the verdict fall.
Torts > ... > General Premises Liability > Dangerous
Conditions > General Overview
Civil Procedure > ... > Jury HN4[ ] Standards of Review, De Novo Review
Trials > Verdicts > General Verdicts
Whether a trial court properly construed and applied the
HN2[ ] Verdicts, General Verdicts mode of operation rule is a question of law over which
an appellate court exercises plenary review.
Even in a case with a single count complaint, the
general verdict rule applies when reliance is placed
upon grounds of action which are distinct, not because
Evidence > Burdens of Proof > Allocation
they involve specific sets of facts forming a part of the
transaction but in the essential basis of the right replied Torts > ... > Duty On
upon. Thus, the general verdict rule would apply in a Premises > Invitees > Business Invitees
case in which a single count of a complaint alleged both
wanton misconduct and negligence. The applicability of Torts > ... > Elements > Duty > Foreseeability of
the general verdict rule does not depend on the niceties Harm
of pleading but on the distinctness and severability of
the claims and defenses raised at trial. Torts > ... > General Premises Liability > Dangerous
Evidence > Burdens of Proof > Allocation HN5[ ] Burdens of Proof, Allocation
Torts > ... > Elements > Duty > Foreseeability of The mode of operation rule is a relatively recent
Harm development in Connecticut negligence law. A plaintiff
establishes a prima facie case of negligence upon
Torts > ... > General Premises Liability > Dangerous presentation of evidence that the mode of operation of
Conditions > General Overview the defendant's business gives rise to a foreseeable risk
of injury to customers and that the plaintiff's injury was
HN3[ ] Burdens of Proof, Allocation proximately caused by an accident within the zone of
risk. The crux of the analysis is whether the premises
The mode of operation rule provides an exception to the owner's design or operation created a foreseeable risk
notice requirement of traditional premises liability of harm, thus retaining the causal link between the
doctrine. The mode of operation rule and traditional actions of the premises owner in designing and
premises liability law require proof of essentially the operating its business and the injured invitee.
Page 3 of 12
show that the business engaged in a deliberate method

of operation which would make the frequent occurrence
Torts > ... > Duty On of similar conditions reasonably foreseeable.
Premises > Invitees > Business Invitees

Torts > ... > Duty On
Harm
Harm
HN6[ ] Invitees, Business Invitees
There is a close relationship between a defendant's
affirmative act of negligence, which obviates the need
for a business invitee to establish that the defendant
had actual or constructive notice of a dangerous
The altered notice inquiry under the mode of operation
condition on the premises, and a defendant's liability to
rule has been justified on two theories. First, when the
a business invitee under the mode of operation rule,
owner of the premises increases the risk of "dangerous,
pursuant to which notice of the dangerous condition also
transitory conditions" by the way particular aspects of
is unnecessary.
the business have been designed, the owner may fairly
be deemed to have constructive notice of those
conditions when they become manifest. Second, the
Evidence > Burdens of Proof > Allocation premises owner may be imputed to have actual
knowledge of the hazards that it has had a hand in
Torts > ... > Duty On creating by purveying merchandise or food in a manner
Premises > Invitees > Business Invitees that increases the likelihood of such hazards arising.
Either way, the fundamental rationale underlying the
Torts > ... > Elements > Duty > Foreseeability of rule is the same: Because the hazard is a foreseeable
Harm consequence of the manner in which the business is
operated, the business is responsible for implementing
Torts > ... > General Premises Liability > Dangerous reasonable measures to discover and remedy the
Conditions > General Overview hazard.
HN7[ ] Burdens of Proof, Allocation
The Supreme Court of Connecticut has explained that Torts > ... > Duty On
the mode of operation rule evolved in response to the Premises > Invitees > Business Invitees
proliferation of self-service retail establishments, in
which patrons are encouraged to obtain for themselves Torts > ... > Elements > Duty > Foreseeability of
from shelves and containers the items they wish to Harm
purchase, and to move from one part of the store to
another, thus increasing the risk of droppage and Torts > ... > General Premises Liability > Dangerous
spillage. In such an environment, proving that the Conditions > General Overview
premises owner, through its employees, had actual or
constructive notice of a specific unsafe condition may
prove "insuperable." Moreover, an unattainable notice
The basic notice requirement of common-law premises
requirement would do little to incentivize businesses to
liability springs from the notion that a dangerous
implement reasonable policies designed to prevent
condition, when it occurs, is somewhat out of the
injuries caused by the foreseeable conduct of
ordinary. In such a situation, the storekeeper is allowed
customers. When the mode of operation rule applies,
a reasonable time, under the circumstances, to discover
the plaintiff need not prove notice of the specific
and correct the condition, unless it is the direct result of
hazardous condition that caused his injury if he can
Page 4 of 12
his (or his employees') acts. However, when the could have conceivably produced the hazardous
operating methods of a proprietor are such that condition. For this reason, a particular mode of
dangerous conditions are continuous or easily operation only falls within the mode-of-operation rule
foreseeable, the logical basis for the notice requirement when a business can reasonably anticipate that
dissolves. hazardous conditions will regularly arise. A plaintiff must
demonstrate the foreseeability of third-party interference
before a court will dispense with traditional notice
requirements.
Evidence > Burdens of Proof > Burden Shifting

Premises > Invitees > Business Invitees Torts > ... > Duty On
Harm Torts > ... > General Premises Liability > Dangerous
Conditions > General Overview HN12[ ] Invitees, Business Invitees
HN10[ ] Burdens of Proof, Burden Shifting The Supreme Court of Connecticut has rejected the
proposition that "self-service merchandising itself" can
The mode of operation rule's application effects a be a negligent mode of operation.
burden shifting. Upon a plaintiff's prima facie showing of
a negligent mode of operation, the burden shifts to the
defendant to rebut the plaintiff's evidence by producing
Evidence > Burdens of Proof > Allocation
evidence that it exercised reasonable care under the
circumstances. The burden then shifts back to the
plaintiff to establish that those steps taken by the
defendant to prevent the accident were not reasonable
under the circumstances. The ultimate burden of proof
rests with the plaintiff.
Harm

Evidence > Burdens of Proof > Allocation Conditions > General Overview
Torts > ... > Duty On HN13[ ] Burdens of Proof, Allocation

The mode of operation rule is applied appropriately only
Torts > ... > Elements > Duty > Foreseeability of when a business employs "a more specific method of
Harm operation within" the general business environment that
is distinct from the ordinary, inevitable way of
Torts > ... > General Premises Liability > Dangerous conducting the sort of commerce in which the business
Conditions > General Overview is engaged. Thus, a supermarket that sells groceries in
the usual self-service fashion is not engaged in a
HN11[ ] Burdens of Proof, Allocation specific "mode of operation"; it is simply in the business
of selling groceries. The mode of operation rule does
The mode-of-operation rule is of limited application not apply generally to all accidents caused by transitory
because nearly every business enterprise produces hazards in self-service retail establishments, but rather,
some risk of customer interference. If the mode-of- only to those accidents that result from particular
operation rule applied whenever customer interference hazards that occur regularly, or are inherently
was conceivable, the rule would engulf the remainder of foreseeable, due to some specific method of operation
negligence law. A plaintiff could get to the jury in most employed on the premises. In order to invoke the mode
cases simply by presenting proof that a store's customer of operation rule, and to satisfy her burden of
Page 5 of 12
establishing a prima facie case, then, the plaintiff must Torts > ... > General Premises Liability > Dangerous
make an additional showing that a more specific method Conditions > General Overview
of operation within a retail environment gave rise to a
foreseeable risk of a regularly occurring hazardous HN16[ ] Invitees, Business Invitees
condition similar to the particular condition that caused
the injury. Merely describing the customary way of The Supreme Court of Connecticut has admonished
conducting a particular kind of business is not enough. that the mode of operation rule is meant to be a narrow
exception to the notice requirements under traditional
premises liability law.

Torts > ... > Elements > Duty > Foreseeability of Premises > Invitees > Business Invitees
Harm
Torts > ... > General Premises Liability > Dangerous Conditions > General Overview
In many situations, traditional premises liability may
There is no reason for limiting application of the mode of afford relief. Nothing prevents recovery if an owner
operation doctrine to only self-service business, or affirmatively creates the actual defect, and what
businesses that include self-service component, constitutes reasonable inspection in such circumstances
scenarios. The dispositive issue is not the presence of may result in a fairly low threshold in establishing
self-service, but whether the operating methods of a constructive notice. If a bar employee is standing next to
proprietor are such that dangerous conditions are a puddle, a fact finder may find actual notice; such a
continuous or easily foreseeable. Self-service, in some showing would not be "insuperable." The mode of
circumstances, may present a situation in which the operation rule aptly fills the narrow niche where the
proprietor's "operating methods" enhance the risk of actual defect is caused by a third party in circumstances
recurring dangerous conditions brought about by third in which the defendant created a zone of danger with
party interference; but it logically is not the only increased risk of frequently repeating hazardous
business method that can have such an effect. conditions.

Syllabus
The plaintiff sought to recover damages from the
HN15[ ] Invitees, Business Invitees defendants for negligence in connection with personal
injuries she had sustained when she slipped and fell in a
Put simply, a nightclub does not create liability under the
nightclub. Thereafter, H Co., the owner of the nightclub,
mode of operation doctrine simply by serving chilled
was substituted as the defendant. The plaintiff alleged
beer. Just as theatres must dim their lights to show
that a step from the booth area where she was sitting to
movies, a nightclub likely could not do business at all if it
the dance floor was defective, that H Co. had caused
could not serve cold drinks.
the floor area where she had fallen to be slippery and
hazardous, and that H Co.'s method of operating a
portable bar on the floor and step area and selling beer
Torts > ... > Duty On from ice filled tubs was an inherently hazardous
Premises > Invitees > Business Invitees [***2] means of serving drinks. The matter was tried to
a jury, which returned a verdict for the plaintiff. From the
Page 6 of 12
judgment rendered thereon, H Co. appealed to this Opinion by: BEACH

court. On appeal, the plaintiff alleged that because her
single count complaint asserted two distinct legal
theories of recovery—the first, relating to the allegedly
defective step, based on traditional premises liability Opinion
law, and the second, relating to the operation of the
beer tubs, based in part on the mode of operation
doctrine—and because interrogatories were not
submitted to the jury, there was no way of discerning on [*130] [**1154] BEACH, J. The substitute defendant
which basis the jury found in her favor and, thus, the Hula's New Haven, LLC,1 appeals from the judgment of
general verdict rule applied. Held: the trial court, rendered after a jury trial, awarding
[***4] damages to the plaintiff, Sandra Konesky. The
1. The plaintiff's claim that the general verdict rule was defendant claims that the trial court improperly
applicable here was unavailing; the various construed and applied the mode of operation rule.2 We
specifications of negligent conduct alleged by the agree and, accordingly, reverse the judgment of the trial
plaintiff in her complaint all sounded in premises liability, court.
and the plaintiff was seeking to vindicate the same
essential right, even though she may have alleged The following facts, which reasonably could have been
somewhat different specifications of negligent conduct found by the jury, are relevant to the resolution of this
to advance each claim. appeal. On the evening of January 11, 2008, the plaintiff
and her husband, Stanley Konesky, attended an event
2. Although, contrary to H Co.'s claim, the mode of organized by the Walter Camp Football Foundation at
operation rule does not apply only to self-service Hula Hank's Island Bar (Hula Hank's), a nightclub in
businesses or businesses [***3] that include self- New Haven owned and operated by the defendant. The
service components, the trial court here improperly plaintiff's husband was a former president of the
applied the mode of operation rule and improperly foundation, which each year honors college football
concluded that H Co.'s sale of beer from the ice filled players. The honored players spend a long weekend in
tubs constituted a particular method of operation within Connecticut and [***5] participate in a variety of
the nightclub that created an inherently foreseeable activities, ranging from visits to children's hospitals to a
heightened risk; the plaintiff's allegations as to H Co.'s black-tie dinner. The Friday evening event is typically a
method of serving beer merely described the transaction party at a nightclub, which is attended by the players,
that always takes place when a patron orders a bottle of foundation members and officers, and members of the
beer at a bar or nightclub, namely, the service of cold [**1155] general public. For several years, including
drinks will inevitably result in slippery surfaces as the 2008, this event was held at Hula Hank's.
drinks are spilled or condensation accumulates, which
would happen regardless of whether the nightclub The Walter Camp event filled Hula Hank's nearly to its
chose to serve beer from a beer tub or from behind a 650 person capacity. As was its practice at events of
more traditional bar. this scale, the defendant supplemented its three
permanent bars by stationing several "beer tubs" at
Counsel: Jan C. Trendowski, with whom was Gregory additional locations throughout the venue, where
A. Allen, for the appellant (substitute defendant). patrons [*131] could buy a bottle or can of beer. Large
plastic tubs were filled with ice and beer and
replenished as the beer sold out. Each tub was set up
John J. Kennedy, Jr., with whom were Edward L. Walsh on top of a large speaker box. A server stood on top of
and, on the brief, Jennifer Antognini-O'Neill, for the
appellee (plaintiff).
1 Hula'sNew Haven, LLC, was substituted as the defendant in
this action for the original named defendants, Post Road
Entertainment and Club, LLC. We therefore refer in this
Judges: DiPentima, C. J., and Gruendel and Beach, Js. opinion to Hula's New Haven, LLC, as the defendant.
In this opinion the other judges concurred. 2 The defendant also claims that the court improperly allowed
evidence of subsequent remedial measures. Because we
reverse the judgment on the defendant's mode of operation
claim, we need not reach this second claim.
Page 7 of 12
the speaker box and handed beers to patrons below. recovery for purposes of the general verdict rule.
One of the beer tubs was positioned near a booth where HN1[ ] "In a typical general verdict rule case, the
the plaintiff and her husband had sat down shortly after record is silent regarding whether the jury verdict
arriving at Hula Hank's. Their booth was one step up resulted from the issue that the appellant seeks to have
from the club's wooden dance floor. After sitting at the adjudicated." Curry v. Burns, 225 Conn. 782, 790, 626
booth for one-half hour or less, the plaintiff got up to use A.2d 719 (1993). "Under the general verdict rule, if a
the restroom. After taking a couple of steps, she slipped jury renders a general [***8] verdict for one party, and
and [***6] fell. The plaintiff immediately felt intense pain [the party raising a claim of error on appeal did not
in her shoulder and foot, and could not get up off the request] interrogatories, an appellate court will presume
floor by herself. She noticed that her pants were wet that the jury found every issue in favor of the prevailing
and saw water on the floor near the beer tub area, on party. . . . [**1156] Thus, in a case in which the general
top of the step. The plaintiff was taken by ambulance to verdict rule operates, if any ground for the verdict is
Yale-New Haven Hospital, where she was diagnosed proper, the verdict must stand; only if every ground is
with a fractured shoulder and foot. She needed surgery improper does the verdict fall." (Internal quotation marks
to repair her fractured foot; her recovery required that omitted.) Tetreault v. Eslick, 271 Conn. 466, 471, 857
she stay off her foot for eight to twelve weeks. A.2d 888 (2004).
The plaintiff thereafter commenced this negligence HN2[ ] Even in a case with a single count complaint,
action against the defendant,3 alleging, among other the general verdict rule applies when "reliance is placed
things, that the step from the booth area to the dance upon grounds of action . . . which are distinct, not
floor was defective, that the defendant had caused the because they involve specific sets of facts forming a
floor area where the plaintiff had fallen to be slippery [*133] part of the transaction but in the essential basis
and hazardous, and that the defendant's chosen method of the right replied upon . . . ." (Internal quotations marks
of selling beer from the ice filled tubs was an inherently omitted.) Curry v. Burns, supra, 225 Conn. 794. Thus,
hazardous means of serving drinks. Following a jury as our Supreme Court noted in Curry, the general
trial, the plaintiff was awarded a total of $292,500 in verdict rule would apply in a case in which a single
damages, which reflected a 10 percent reduction of the count of a complaint alleged both wanton misconduct
award for the plaintiff's comparative negligence. This and negligence. Id. The applicability of the general
appeal followed. Additional facts and procedural history verdict rule "does not depend on the niceties of pleading
will be set forth as necessary. but on the distinctness and severability of the claims
and defenses [***9] raised at trial." (Internal quotation
marks omitted.) Id., 787.
[*132] I
The various specifications of negligent conduct alleged
The [***7] plaintiff preliminarily asserts that the general by the plaintiff in her complaint—including the two at
verdict rule applies in this case. She argues that if either issue on appeal—all sound in premises liability. See
of the defendant's two claims on appeal fails, we must Duncan v. Mill Management Co. of Greenwich, Inc., 308
affirm the judgment. Specifically, the plaintiff contends Conn. 1, 3-5, 60 A.3d 222 (2013); Fisher v. Big Y
that her one count complaint, which sounded in Foods, Inc., 298 Conn. 414, 419, 3 A.3d 919 (2010)
negligence, asserted two distinct legal theories of (explaining that HN3[ ] mode of operation rule
recovery: the first, relating to the allegedly defective provides "an exception to the notice requirement of
step, based on traditional premises liability law, and the traditional premises liability doctrine"); Kelly v. Stop &
second, relating to the operation of the beer tubs, Shop, Inc., 281 Conn. 768, 797, 918 A.2d 249 (2007)
based, in part, on the "mode of operation" doctrine. (Zarella, J., concurring) ("the mode of operation rule . . .
Because interrogatories were not submitted to the jury and traditional premises liability law require proof of
distinguishing between these two purportedly distinct essentially the same elements"). Thus, a plaintiff who
theories, the plaintiff claims that there is no way of attempts, as here, to prevail under either common-law
discerning on which basis the jury found in her favor. premises liability principles or the mode of operation rule
We disagree with the assertion that the plaintiff's is seeking to vindicate the same "essential right"; Curry
allegations established two separate legal bases for v. Burns, supra, 225 Conn. 794; even though she may
allege somewhat different specifications of negligent
3 See
conduct to advance each claim. See Green v. H.N.S.
footnote 1 of this opinion.
Page 8 of 12
Management Co., 91 Conn. App. 751, 756, 881 A.2d applied the mode of operation rule is a question of law
1072 (2005) (general verdict rule "does not apply if a over which we exercise plenary review. See id., 424.
plaintiff [***10] submits to the jury several different HN5[ ] The mode of operation rule is a relatively
specifications of negligent conduct in support of a single recent development in Connecticut negligence law.
cause of action for negligence"), cert. denied, 277 Conn. [***12] In Kelly v. Stop & Shop, Inc., supra, 281 Conn.
909, 894 A.2d 990 (2006). 791, Connecticut's seminal mode of operation case, our
Supreme Court held that "a plaintiff establishes a prima
[*134] The general verdict rule, then, does not apply facie case of negligence upon presentation of evidence
and we are not precluded from reversing the judgment that the mode of operation of the defendant's business
in favor of the plaintiff if we conclude that any ground on gives rise to a foreseeable risk of injury to customers
which the jury could have based its verdict was and that the plaintiff's injury was proximately caused by
improper. See id., 757. an accident within the zone of risk." The crux of the
II analysis is whether the premises owner's "design or
operation . . . created a foreseeable risk of harm, thus
We next address the defendant's claim that the court retaining the causal link between the actions of the
misconstrued the mode of operation rule. The defendant premises owner in designing and operating [its
contends that the mode of operation doctrine was business] and the injured invitee." Id., 795 (Zarella, J.,
erroneously applied for two reasons: (1) the particular concurring).5
business operation at issue was not self-service in
nature, and (2) the only mode of operation that the [*136] The mode of operation rule was adopted in a
plaintiff identified as being peculiar and inherently slip and fall case that occurred at a self-service salad
hazardous was the service of bottles and cans of beer bar within a supermarket. See id., 768. HN7[ ] Our
from ice filled tubs, which, the defendant argues, is not Supreme Court explained that the rule "evolved in
significantly different from other means of performing response to the proliferation of self-service retail
this essential nightclub function. [***14] establishments," in which patrons are
encouraged "to obtain for themselves from shelves and
The following additional procedural history is relevant to containers the items they wish to purchase, and to move
the defendant's claim. The plaintiff alleged in her
amended complaint that the defendant operated a
"portable bar on the floor and step area in such a 5 The Supreme Court noted in Kelly that HN6[ ] there is a
manner [***11] that it was foreseeable that the "close relationship between a defendant's affirmative act of
defendant's employees and patrons would spill or drop negligence, which obviates the need for a business invitee to
beverages, ice, water and drinks as they were working, establish that the defendant had actual or constructive notice
dancing or congregating, thereby creating a dangerous of a dangerous condition on the premises, and a defendant's
[**1157] condition in the immediate vicinity of the liability to a business invitee under the mode of operation rule,
pursuant to which notice of the dangerous condition also is
[portable] bar . . . ." The defendant filed a motion in
unnecessary." Kelly v. Stop & Shop, Inc., supra, 281 Conn.
limine to preclude the introduction of evidence related to
785 n.6.
the mode of operation theory of premises liability. The
court heard arguments on the issue and denied the This [***13] "close relationship" between the two theories of
defendant's motion.4 The court agreed with the plaintiff liability is demonstrated in the present case. The jury was
that the use of the portable bars constituted a "particular instructed that it could hold the defendant liable if it found "that
method of operation within a bar that creates an the defendant created the unsafe condition of water on the
inherently foreseeable heightened risk . . . ." The court floor by [its] actions" with respect to the service from the beer
stated that its ruling [*135] was consistent with our tub or if it found that the plaintiff's injuries "were caused by the
mode of operation by which the defendant operated its
Supreme Court's holding in Fisher v. Big Y Foods, Inc.,
business . . . ." At trial, in support of her theory that the
supra, 298 Conn. 414.
defendant had affirmatively created the hazardous condition,
the plaintiff argued that the defendant "created the defect by
HN4[ ] Whether the trial court properly construed and
taking bottles of beer out of [the tub] that were in ice and
water." In her appellate brief, the plaintiff argues that the mode
of operation rule was properly invoked, in part, because of the
4 The court had heard largely undisputed evidence regarding "defendant's chosen method of selling dripping wet beers from
the logistics of operating the beer tubs prior to ruling. We rely beer tubs." If this were so, there would be no need to invoke
on the same facts. the mode of operation rule.
Page 9 of 12
from one part of the store to another . . . thus increasing HN10[ ] The rule's application effects a burden
the risk of droppage and spillage." (Internal quotation shifting. Upon the plaintiff's prima facie showing of a
marks omitted.) Id., 778. In such an environment, negligent mode of operation, the burden shifts to "[t]he
proving that the premises owner, through its employees, defendant [to] rebut the plaintiff's evidence by producing
had actual or constructive notice of a specific unsafe evidence that it exercised reasonable care under the
condition may prove [**1158] "insuperable." Id., 788. circumstances." Id., 791. The burden then shifts back to
Moreover, an unattainable notice requirement would do the plaintiff to "establish that those steps taken by the
little to incentivize businesses to implement reasonable defendant to prevent the accident were not reasonable
policies designed to prevent injuries "caused by the under the circumstances." (Internal quotation marks
foreseeable conduct of . . . customer[s] . . . ." Id., 789. omitted.) Fisher v. Big Y Foods, Inc., supra, 298 Conn.
When the mode of operation rule applies, the plaintiff 420 n.13. The ultimate burden of proof rests with the
need not prove notice of the specific hazardous plaintiff. Kelly v. Stop & Shop, Inc., supra, 281 Conn.
condition that caused his injury if he can show that the 792.
business engaged in a deliberate method of operation
which would make the frequent occurrence of similar HN11[ ] "The mode-of-operation rule is of limited
conditions reasonably foreseeable. See Fisher v. Big Y application because nearly every [***17] business
Foods, Inc., supra, 298 Conn. 419 n.10. enterprise produces some risk of customer interference.
If the mode-of-operation rule applied whenever
HN8[ ] This altered notice inquiry under the mode of customer interference was conceivable, the rule would
operation rule has been justified on two theories. First, engulf the remainder of negligence law. A plaintiff could
when the owner of the premises increases the get to the jury in most cases simply by presenting proof
[***15] risk of "dangerous, transitory conditions" by the that a store's [*138] customer could have conceivably
way particular aspects of the business have been produced the hazardous condition. For this reason, a
designed, the owner may fairly be deemed to have particular mode of operation only falls within the mode-
constructive notice of those conditions when they of-operation rule when a business can reasonably
become manifest. Kelly v. Stop & Shop, Inc., supra, 281 anticipate that hazardous conditions will [**1159]
Conn. 780. Second, the premises owner may be regularly arise. . . . A plaintiff must demonstrate the
imputed to have actual knowledge of the hazards that it foreseeability of third-party interference before [a court]
has had a hand in creating by purveying merchandise or will dispense with traditional notice requirements."
food in a manner that increases the likelihood of such (Citations omitted.) Chiara v. Fry's Food Stores of
hazards arising. Id., [*137] 781. Either way, "the Arizona, Inc., 152 Ariz. 398, 400-401, 733 P.2d 283
fundamental rationale underlying the rule is the same: (1987).7
Because the hazard is a foreseeable consequence of
the manner in which the business is operated, the In Fisher v. Big Y Foods, Inc., supra, 298 Conn. 437,
business is responsible for implementing reasonable our Supreme Court expressed concern about an overly
measures to discover and remedy the hazard."6 Id. expansive application of the mode of operation rule and
recognized limits on its application. In that case, a
shopper at a Big Y supermarket slipped and fell in a
6 The Supreme Court in Kelly quoted with approval the puddle of syrupy [***18] liquid. Id., 417. The source of
Colorado Supreme Court's cogent explication of why, in the liquid was not definitively ascertained because there
certain situations, the notice requirements of common-law was no broken container in the vicinity of the puddle. Id.,
premises liability should give way to a different inquiry: HN9[ 417 n.4. Video surveillance footage showed that the
] "[T]he basic notice requirement springs from the [notion] aisle in which the puddle was located had been swept
that a dangerous condition, when it occurs, is somewhat out of seven minutes prior to the shopper's fall. Id., 417.
the ordinary. . . . In such a situation, the storekeeper is allowed Rather than attempt to prove that the defendant store
a reasonable time, under [***16] the circumstances, to owner had actual or constructive knowledge of the
discover and correct the condition, unless it is the direct result apparent spill, the plaintiff shopper prevailed at trial by
of his (or his employees') acts. However, when the operating
successfully invoking the mode of operation theory of
methods of a proprietor are such that dangerous conditions
premises liability as articulated in Kelly. Id., 420.
are continuous or easily foreseeable, the logical basis for the
notice requirement dissolves." (Internal quotation marks
omitted.) Kelly v. Stop & Shop, Inc., supra, 281 Conn. 787,
quoting Jasko v. F. W. Woolworth Co., 177 Colo. 418, 420-21, 7 Chiara was cited with approval by our Supreme Court in Kelly
494 P.2d 839 (1972). v. Stop & Shop, Inc., supra, 281 Conn. 782, 792.
Page 10 of 12
HN12[ ] The Supreme Court reversed the judgment, enough.9

rejecting the proposition that "self-service
A
merchandising itself" can be a negligent mode of
operation.8 Id., 424. If that [*139] were so, the court
We first address the defendant's claim that the mode of
reasoned, every aspect of a modern supermarket would operation rule applies only to self-service businesses, or
be rendered a "'zone of risk' due to the readily businesses that include self-service components.
established fact that merchandise, as a general matter, Although Kelly and Fisher both resolved slip and fall
sometimes falls and breaks." Id. The Fisher court further cases that occurred in contemporary self-service
asserted that it would be unsound to characterize as supermarkets, HN14[ ] there is no reason for limiting
inherently hazardous "a modern supermarket's only application of the doctrine to only those scenarios. The
method of operation"—that is, permitting customers to dispositive issue is not the [***22] presence of self-
serve themselves. (Emphasis in original.) Id., 438. This service, but whether "the operating methods of a
would be [***19] similar to charging a movie theatre proprietor are such that dangerous conditions are
with employing a negligent method of operating by continuous or easily foreseeable . . . ." (Internal
showing movies in a darkened space. Id. quotation marks omitted.) Kelly v. Stop & Shop, Inc.,
The court in Fisher suggested that HN13[ ] the mode supra, 281 Conn. 787. Self-service, in some
of operation rule is applied appropriately only when a circumstances, may present a situation in which the
business employs "a more specific method of operation proprietor's "operating methods" enhance the risk of
within" the general business environment that is distinct recurring dangerous conditions brought about by third
from the ordinary, inevitable way of conducting the sort party interference; Chiara v. Fry's Food Stores of
of commerce in which the business is engaged. Arizona, Inc., supra, 152 Ariz. 401; but it logically is not
the only business method that can have [*141] such an
(Emphasis in original.) Id., 427. Thus, a supermarket
that sells groceries in the usual self-service fashion is effect.10 Moreover, the Supreme Court in Fisher cited to
not engaged in a specific "mode of operation"; it is
simply in the business of selling groceries. See id., 423
("the mode of operation rule . . . does not apply 9 This idea was developed more thoroughly by the North
[***20] generally to all accidents caused by transitory Carolina Court of Appeals in Kearns v. Horsley, 144 N.C. App.
hazards in self-service retail establishments, but rather, 200, 552 S.E.2d 1, review denied, 354 N.C. 573, 559 S.E.2d
only to those accidents that result from particular 179 (2001), which was discussed with approval in Fisher v.
hazards that occur regularly, or are inherently Big Y Foods, Inc., supra, 298 Conn. 438-39. In Kearns, the
foreseeable, due to some specific method of operation court rejected the application of the mode of operation rule
employed on the premises"). In order to invoke the where a moviegoer tripped over torn carpeting in a darkened
mode of operation rule, and to satisfy her burden of [***21] theatre. The court reasoned that showing movies in a
establishing a prima facie case, then, the plaintiff must dark space is a "theatre's only method of operation and as
make an "additional showing that a more specific such, the theatre cannot be considered negligent but instead,
its patrons must be considered to have assumed the risk in
method of operation within a . . . retail environment gave
order to take part in the activity provided." (Emphasis in
rise to a foreseeable risk of a regularly occurring
original.) Kearns v. Horsley, supra, 205. The court further
hazardous [**1160] condition similar to the particular
observed that "the darkening of the area within the theatre
condition that caused the injury." (Emphasis in original.) where the movie is being shown, is an operation of practicality
Id., 427. Merely describing the customary [*140] way and compl[ies] with ordinarily used standards of care in [the]
of conducting a particular kind of business is not particular activit[y]." (Internal quotation marks omitted.) Id.
Thus, the mode of operation rule did not apply and, in order to
prevail, the plaintiff had to show that the theatre operator had
actual or constructive notice of the tear in the carpeting. Id.,
8 In this regard, compare Fisher with Wollerman v. Grand 207.
Union Stores, Inc., 47 N.J. 426, 429, 221 A.2d 513 (1966)
(mode of operation rule applied where "green beans are sold 10 The Supreme Court in Fisher v. Big Y Foods, Inc., supra,
from open bins on a self-service basis"), and Chiara v. Fry's 298 Conn. 428, did observe that many mode of operation
Food Stores of Arizona, Inc., supra, 152 Ariz. 398 (mode of cases "involved produce displays or other instances of
operation rule applied where creme rinse spill in a unwrapped and/or ready to eat food that customers were
supermarket caused plaintiff's injury). Specifically, in some encouraged to handle [***23] . . . ." Indeed, the court stated
jurisdictions, an entire supermarket seemingly can be that "[t]he mode of operation rule most typically is applied in
considered a "zone of risk." such circumstances." Id., 428 n.22.
Page 11 of 12
cases from other jurisdictions where the mode of We agree with the defendant that, although the plaintiff
operation rule has been applied to myriad methods of has gone to great lengths to distinguish the method of
operation apart from self-service retail enterprises. See serving beer at issue here, when stripped of the
Fisher v. Big Y Foods, Inc., supra, 298 Conn. 430. embellishment, she has merely described the
Therefore, the defendant's first challenge to the transaction that always takes place when a patron
applicability of the mode of operation rule is unavailing. orders a bottle of beer at a bar, a nightclub, or a
wedding reception. The bottle is removed by a server,
B
either from a refrigerator or a cooler filled with ice, and
The defendant additionally challenges the court's handed to the patron, who is separated from the server
conclusion that the sale of beer from the ice filled tubs by a bar or other service area. The service of cold drinks
constituted a "particular method of operation within a bar will inevitably result in slippery surfaces, as drinks are
that create[d] an inherently foreseeable heightened risk . spilled or condensation from drinks accumulates, but
. . ." The defendant specifically contends that the only this will happen regardless of whether a nightclub
"mode of operation" advanced by the plaintiff is the chooses to serve beer from a "beer tub" propped on a
service of iced beer at a nightclub. Because the method speaker or from behind a more traditional bar.12 HN15[
of service utilized at Hula Hank's is not appreciably ] Put [*143] simply, a nightclub does not create
different from the methods necessarily employed by all liability under the mode of operation doctrine simply by
bars that serve cold beverages, the defendant argues serving chilled beer. Cf. Fisher v. Big Y Foods, Inc.,
that the mode of operation [**1161] rule is inapplicable. supra, 298 Conn. 438 ("a modern supermarket's only
The plaintiff counters that the mode of operation rule method of operation is to place items on shelves for
applies to the defendant's "chosen method of selling customer selection [***26] and removal"; as such, that
dripping wet beers from beer tubs." She identifies method of commerce cannot be considered negligent
several aspects of the beer tub method of service that [emphasis in original]). Just as theatres must dim their
supposedly distinguish it from more refined means of lights to show movies, a nightclub likely could not do
selling beer, namely, that the ice filled tubs were business at all if it could not serve cold drinks. See
uninsulated; that they were elevated on speaker boxes, Kearns v. Horsley, 144 N.C. App. 200, 205, 552 S.E.2d
which required the server to hand the drink to the patron 1, [**1162] review denied, 354 N.C. 573, 559 S.E.2d
who stood several feet below; and [***24] that the beer 179 (2001).
was not wiped down before it was given to a
customer.11 [*142] According to the plaintiff, this Moreover, if we were to accept that the defendant's
creates the risk that patrons will "congregate [near the service of beer constituted an inherently hazardous
tubs] or move about the premises with the wet beer mode of operation, virtually the entire nightclub would
bottles or cans, thus causing water to pool on the floor . become a "zone of risk" simply because drinks do
. . ." sometimes spill or otherwise produce slippery surfaces.
See Fisher v. Big Y Foods, Inc., supra, 298 Conn. 424.
"Accordingly, the requirement of establishing that an
11 These aspects of the plaintiff's mode of operation claim,
related to the allegedly careless service of beer from the tubs,
assert affirmative negligent acts by employees of the 12 In this context, it is significant that the complaint in this
defendant. In other words, the creation of hazardous, wet regard alleged, as an increased hazard, that drinks were more
conditions in the vicinity of the beer tubs does not depend on likely to be dropped or spilled when served from the beer tubs.
further actions by customers. It is not clear under Connecticut The plaintiff has pointed us to nothing in the record that would
law whether recurring, affirmative negligent acts by employees substantiate such an increased risk. The plaintiff notes in her
can be the basis for a mode of operation claim. The appellate brief that the "the defendant's policy of assigning a
justification proffered for adopting the mode of operation rule barback to identify and to clean spills in the area of the
in Kelly, however, suggests that third party interference is a portable bars evidences that the hazard was inherently
necessary component of such a claim. See Kelly v. Stop & foreseeable and occurred regularly." This assertion, however,
Shop, Inc., supra, 281 Conn. 786-90. Fisher forecloses mischaracterizes the significance of the deployment of
application of the rule to these facts, and, in any event, barbacks to the beer tub areas. A manager from the bar
because there is no requirement under traditional negligence actually testified that barbacks were assigned not only to a
law principles for a plaintiff to prove notice where the defect is particular beer tub, but also to the surrounding area, and that
directly caused by [***25] the owners of the premises, the this staffing arrangement was consistent with the
invocation of the mode of operation rule in such circumstances responsibilities [***27] of barbacks assigned to the permanent
is superfluous and unnecessary. bars.
Page 12 of 12
injury occurred within some 'zone of risk' essentially

would be rendered superfluous." Id. The result would be
that any slip and fall on a wet surface, no matter how
briefly the slippery condition existed, would shift the
burden to the nightclub's owners to show that they had
acted reasonably.13 This would be inconsistent with
HN16[ ] [*144] 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. See id., 437.
The application of the mode of operation rule in this

case was flawed in another respect. The only customer
interference alleged by the plaintiff was that patrons who
purchased beer from the tubs would move around the
bar, "carrying, consuming and discarding the wet beer
bottles or cans . . . ." These allegations—if they amount
to customer interference at all—fail for the same reason
as the allegations [***29] with respect to the operation
of the tub. If the mode of operation rule could be
satisfied by bar patrons carrying wet glasses, there
would be no effective limitation on the application of the
rule.
The judgment is reversed and the case is remanded for

a new trial.
In this opinion the other judges concurred.
End of Document
13 We note that this result is not draconian. HN17[ ] In many

situations, traditional premises liability may afford relief.
Nothing prevents recovery if the owner affirmatively creates
the actual defect; see Kelly v. Stop & Shop, Inc., supra, 281
Conn. 785 n.6; and what constitutes reasonable
[***28] inspection in such circumstances may result in a fairly
low threshold in establishing constructive notice. If a bar
employee is standing next to a puddle, a fact finder may find
actual notice; such a showing would not be "insuperable."
It is, of course, possible that the jury in this case could have
applied traditional notice standards and reached the same
result. See part I of this opinion. In its instructions to the jury,
the court charged that the defendant could be liable if it found
the defendant's affirmative acts created the hazardous
condition. The mode of operation rule aptly fills the narrow
niche where the actual defect is caused by a third party in
circumstances in which the defendant created a zone of
danger with increased risk of frequently repeating hazardous
conditions.

Konesky v. Post Road Entertainment

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Date and Time: Tuesday, March 16, 2021 8:37:00 PM EDT

Job Number: 139094718

1. Konesky v. Post Rd. Entm't, 144 Conn. App. 128

Konesky v. Post Rd. Entm't

SANDRA KONESKY v. POST ROAD

Disposition: Reversed; new trial.

In a typical general verdict rule case, the record is silent

show that the business engaged in a deliberate method

Torts > ... > Elements > Duty > Foreseeability of

HN7[ ] Burdens of Proof, Allocation

Torts > ... > Duty On

Torts > ... > General Premises Liability > Dangerous

Torts > ... > Duty On HN13[ ] Burdens of Proof, Allocation

Torts > ... > Duty On

Torts > ... > Duty On

judgment rendered thereon, H Co. appealed to this Opinion by: BEACH

HN12[ ] The Supreme Court reversed the judgment, enough.9

injury occurred within some 'zone of risk' essentially

The application of the mode of operation rule in this

The judgment is reversed and the case is remanded for

In this opinion the other judges concurred.

13 We note that this result is not draconian. HN17[ ] In many

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