Judith Mason v. Wal–Mart Stores, Inc. (2012)

MEMORANDUM OF DECISION

This case arises from an incident in which the plaintiff, Judith Mason, slipped and fell while shopping at the defendant Wal–Mart's Waterford, Connecticut location on May 28, 2010.   As a result of the fall, the plaintiff sustained severe injuries, including a torn rotator cuff and a ruptured hamstring.   Her rotator cuff injury required surgery.   Subsequent to the surgery, Mrs. Mason underwent physical therapy which she continued at her home.

The plaintiff fell in the area of the store just in front of the checkout area, a high-traffic area known as “action alley.”   The plaintiff slipped on a puddle of water that accumulated under the shopping carriage of another customer, who had purchased a bag of mulch.   That customer had briefly stopped before entering a cash register lane.   The mulch purchaser had a bag of mulch in her carriage, and water dripped out from a hole in the bag of mulch.   A video of the incident submitted into evidence showed that the water was deposited on the floor at approximately 8:33 p.m. The plaintiff slipped and fell at approximately 8:34 p.m.

The plaintiff alleges that her slip and fall was the result of the defendant's negligence under the theories of actual notice, constructive notice and mode of operation.

I.

Actual Notice and Constructive Notice

It is undisputed that the plaintiff here is a business invite.  “[F]or a plaintiff to recover for a breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it ․ [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it ․ In the absence of allegations and proof of any facts that would give rise to an enhanced duty ․ [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.”  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007).

Actual Notice

The first inquiry is whether the defendant had actual notice of the unsafe condition.   The plaintiff argues that the defendant did have such notice in two ways.   First, the plaintiff argues that because the defendant created the unsafe condition, the defendant is deemed to have actual notice.¹  Second, the plaintiff claims the defendant had actual notice because, while the plaintiff lay on the floor immediately after the fall, she heard an employee of the defendant say that she “fell in a puddle of water from a bag of mulch.”   The defendant argues that this case is not an actual notice case.   The defendant maintains that no evidence suggesting that the defendant knew anything of this hazardous condition exists in the record.

This is not an actual notice case.   No evidence was presented that proves that the defendant knew of the unsafe condition prior to the plaintiff's fall.   The plaintiff's testimony concerning the unidentified employee who indicated that the plaintiff had slipped on water from a bag of mulch, standing alone, does not prove that the defendant had actual notice of the hazardous condition prior to the plaintiff's fall.   Additionally, no evidence was presented to suggest that the defendant created the hazardous condition in this case.²  The evidence presented in the case clearly showed that the hazard was created by the mulch purchaser who was transporting a dripping bag of mulch in her shopping cart.

Constructive Notice

Given that the plaintiff has failed to prove that the defendant had actual notice of the hazardous condition, “[t]he controlling question [becomes] that of constructive notice:  whether the condition had existed for such a length of time that the [defendant's] employees should, in the exercise of due care, have discovered it in time to have remedied it ․ What constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case.   The nature of the business and the location of the foreign substance would be factors in this determination ․ To a considerable degree each case must be decided on its own circumstances.   Evidence which goes no farther than to show the presence of a slippery foreign substance does not warrant an inference of constructive notice to the defendant.”  (Citations omitted;  internal quotation marks omitted.)  Kelly v. Stop and Shop, Inc., supra, 281 Conn. 777.

Here, the plaintiff argues that the defendant had constructive notice of the hazardous condition due to the size and close proximity to defendant's employees of the spill.   The defendant argues that the hazardous condition did not exist long enough for the defendant to notice it and take corrective measures or other suitable precautions.   The court finds the defendant's argument to be persuasive.

At trial, Plaintiff's Exhibit 5, an in-store video recording that captured the plaintiff's slip and fall, as well as the period of time leading up to the incident, revealed that the water from the mulch bag was on the ground for a mere 60 seconds.   It would be unreasonable for this court to find that the defendant had constructive notice of a hazardous condition that had been in existence for but one minute.   The defendant's store is large, and such minute-to-minute monitoring would be unfeasible.

Mode of Operation

Under the mode of operation theory, “a plaintiff establishes a prima facie case of negligence 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.”  Kelly v. Stop and Shop, Inc., supra, 281 Conn. 791.   The plaintiff argues that the mode of operation theory applies to this case.   Specifically, the plaintiff argues:  “The evidence set forth hereinabove establishes that the mode of operation of the defendant that is allowing bags of mulch that are known to have water inside, and that are known to rip and/or tear, and that are taped for resale, and are known to leak and/or spill upon a floor, which leaks and/or spills are known to cause tile floors to become slippery—causes a foreseeable risk and further it is foreseeable that the hazard would exist in the most heavily traveled area of the store, the front checkout area (racetrack and/or action alley).”   The defendant argues that the mode of operation theory does not apply to this case because the plaintiff's injury was not foreseeable, and did not occur within a zone of risk.

The mode of operation theory only applies to foreseeable injuries that occur within an identifiable zone of risk.  Fisher v. Big Y Foods, Inc., 298 Conn. 414, 424, 3 A.3d 919 (2010).   The Supreme Court in Fisher, stated when a “dangerous condition arises through means other than those reasonably anticipated from the mode of operation, the traditional burden of proving notice remains with the plaintiff.”   Consequently, when a plaintiff injured by a transitory hazardous condition on the premises of a self-service retail establishment fails to show that a particular mode of operation made the condition occur regularly or rendered it inherently foreseeable, the plaintiff must proceed under traditional premises liability doctrine, i.e., he must show that the defendant had actual or constructive notice of the particular hazard at issue ․”

Here, the plaintiffs suggest that “action alley” (i.e., the checkout area) constitutes the zone of risk because it is the most heavily traveled area of the store.   Such a proposition would mean that every store's check-out area would constitute a zone of risk.   To date no Connecticut court has endorsed such a proposition.   The court finds that the high-traffic nature of the checkout area of a large retail store does not, in and of itself, render that area a zone of risk for purposes of the mode of operation theory of negligence.   The plaintiff in the present case has not proven her mode of operation claim.

II.

CONCLUSION

The court has no doubt that the plaintiff suffered greatly from the very serious injuries she sustained at the defendant's store.   Nonetheless, the plaintiff has not made out a valid claim for negligence based on the actual notice, constructive notice or mode of operation theories.   The court is not permitted to allow its sympathy for the plaintiff to factor into its decision in this case.   Based on the forgoing, the court hereby finds the issues in favor of the defendant.   Accordingly, judgment is hereby entered for the defendant.

Stengel, JTR

FOOTNOTES

FN1. This is a correct statement of the law.  “If the plaintiff ․ alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof of notice is not necessary ․ That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof.”  (Internal quotation marks omitted.)  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777 (2007)..  FN1. This is a correct statement of the law.  “If the plaintiff ․ alleges an affirmative act of negligence, [that is], that the defendant's conduct created the unsafe condition, proof of notice is not necessary ․ That is because when a defendant itself has created a hazardous condition, it safely may be inferred that it had knowledge thereof.”  (Internal quotation marks omitted.)  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 777 (2007).

FN2. To the extent that the plaintiff is arguing that the defendant's mode of operation (i.e. allowing customers to bring bags of mulch from the lawn and garden section of the store with them through the rest of the store) “created” the hazardous condition, such an argument is inappropriate under the actual notice theory, and is best utilized under the mode of operation theory..  FN2. To the extent that the plaintiff is arguing that the defendant's mode of operation (i.e. allowing customers to bring bags of mulch from the lawn and garden section of the store with them through the rest of the store) “created” the hazardous condition, such an argument is inappropriate under the actual notice theory, and is best utilized under the mode of operation theory.

Stengel, Robert F., J.T.R.