Wayne Thomas v. LLC (2015)

MEMORANDUM OF DECISION RE DENIAL OF MOTION TO SET ASIDE VERDICT AND FOR NEW TRIAL

On September 17, 2015, the jury rendered a defendant's verdict in this matter.  The plaintiff, Wayne Thomas, had alleged that on July 24, 2011, he slipped and fell at a laundromat owned and operated by the defendant, Dellfield Laundry, LLC, and that the injuries he sustained resulted from the negligence of the defendant.  He specifically claimed that the premises, a self-service laundromat, were defective, in that the defendant allowed slippery, soapy water to accumulate on the floor, that the defendant knew, or in the exercise of reasonable care should have known of this condition and corrected it, and that the defendant's negligence was the proximate cause of his injuries.  The defendant denied the allegations and entered a special defense that the injuries were the result of the defendant's own negligence.

The plaintiff now seeks to set aside the general verdict on two grounds:

1. The court should not have denied plaintiff's motion in limine to preclude evidence of certain prior unrelated injuries and claims.

2. The court should not have denied plaintiff's request to amend the pleadings to add “mode of operation” as a basis for the negligence charge.

Motion in Limine

Just prior to trial, the plaintiff moved to exclude mention during the trial of his prior claim that he experienced lower back pain as a result to the fall.  Allegations of lower back pain resulting from or aggravated by the fall were included in his original complaint and in his first amended complaint.  Further, his hospital evaluation, on the day after the fall, noted he was experiencing lower back pain.

The plaintiff had a complex medical history and acknowledged that he had difficulty remembering, the combination of which made tracking his pre-existing conditions very challenging.  In fact, the plaintiff did not seek to withdraw his claim of lower back pain from the complaint, until it became apparent that he had been treated for lower back pain—similar to that complained of—in the year prior to the fall.

The plaintiff's consulting physician, Dr. Helar Campos, worked to piece together his actual medical history, but acknowledged during his deposition, that he was not sure he was aware of all pre-existing conditions.  He further stated that his analysis of the defendant's current and past medical conditions was limited by the defendant's lack of memory and documentation.  Given the contradictory claims of the defendant and the uncertainty of his medical history, the court finds that it was appropriate—whether for purposes of establishing damages or for credibility—to deny the motion in limine.

Mode of Operation

In the two months leading up to the trial, the plaintiff sought to add to the negligence allegations a “mode of operation” charge.  Specifically the plaintiff sought to prove that the operations of the self-service laundromat—without on-site supervision—necessarily allowed the hazard of soapy water accumulating on the floor without systematic detection or correction.  The plaintiff first made this request, shortly before trial, to Judge Moukawsher, who denied it on the grounds that it added a new and possibly prejudicial charge to the complaint on the eve of trial and was unfair to the defendant.  At trial, the plaintiff renewed this request, and it was again denied, as it was deemed unfair to add what amounted to a strict liability charge to the pleadings without giving the defendant an opportunity for discovery.  The plaintiff now asks a third time for the opportunity to enter this allegation and retry the case, and the court again finds that addition of that charge on the eve of trial was appropriately denied, as its addition at such a late date in the proceedings would have prejudiced the defense and was, in all probability, as set forth below, unnecessary.

It should be noted that the plaintiff never moved for a continuance of the trial to provide an opportunity for both parties to assess this proposed “mode of operation” charge.  Furthermore, as the “mode of operation” charge has developed over time, it does not appear that it would necessarily have been applicable to this case.  Specifically it is questionable whether the “mode of operation” charge applies to a self-service facility, such as this laundromat, where the essence of the facility is that there is no one on full-time duty and the washing and drying is done by the customers.  As part of the premises liability charge, the plaintiff at trial was able to establish through testimony how frequently the premises were inspected, by whom, and what constituted an inspection to prevent spills.  The jury took all this information into account in determining whether or not the defendant was negligent.

While the Connecticut courts have recognized “mode of operation” charges as a legitimate basis for a negligence claim, obviating the customary proof of “actual or constructive” notice, (see Kelly v. Stop and Shop, Inc., 281 Conn. 768 (2007)), the Connecticut Supreme Court has also recognized that “self-service merchandising itself” is not per se an act of negligence and that in the case of self-service establishments, more than just “mode of operation” must be established to create liability.  See Fisher v. Big Y Foods, Inc., 298 Conn. 414 (2010).  See also Koletsky v. Post Road Entertainment, 144 Conn.App. 128 (2013).  Given the testimony in this case regarding the regular times and nature of inspections by the principal and his family, it is not at all clear that the plaintiff was prejudiced by the denial of the opportunity to pursue the “mode of operation” claim.

The court also notes that the defendant raised the special defense of comparative negligence in this case, and verdict was a general one.  Therefore, it is not possible to determine whether the defendant prevailed on a finding of comparative as opposed to a determination of no negligence.  Under these circumstances, there is a presumption that the jury found every issue in favor of the prevailing party, and the court's failure to allow the “mode of operation” charge should be disregarded.  See Tetreault v. Eslick, 271 Conn. 466 (2004).

For the forgoing reasons, the plaintiff's motion to set aside the verdict and its motion for a new trial are denied.

T. Bates, Judge, Superior Court

Bates, Timothy, J.