Porto v. Petco

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1. Porto v. Petco Animal Supplies Stores, Inc., 167 Conn. App. 573
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Porto v. Petco Animal Supplies Stores, Inc.

Appellate Court of Connecticut
May 18, 2016, Argued; August 16, 2016, Officially Released
AC 37516
Reporter
167 Conn. App. 573 *; 145 A.3d 283 **; 2016 Conn. App. LEXIS 324 ***
Overview
KATERINA PORTO v. PETCO ANIMAL SUPPLIES
ISSUE: Whether a pet store, that allowed leashed
STORES, INC.
animals inside the store, was liable under a theory of
premises liability when a store customer alleged that the
store's pet-friendly mode of operation caused her to slip
and fall in dog urine at the store. HOLDINGS: [1]-The
Prior History: [***1] Action to recover damages for the customer failed to establish premises liability on the part
defendant's alleged negligence, and for other relief, of the pet store because the pet store's merely allowing
brought to the Superior Court in the judicial district of a leashed pet into the store did not give rise to the
New Haven and tried to the court, Burke, J.; judgment conduct against which the mode of operation rule was
for the defendant, from which the plaintiff appealed to intended to impose liability as an exception to the notice
this court; thereafter, the court, Burke, J., issued an requirement for premises liability. Furthermore, while pet
articulation of its decision. messes were undoubtedly possible under a pet friendly
mode of operation, possibilities alone did not give rise to
the type of regularly occurring or inherently foreseeable
Porto v. Petco Animal Supplies Stores, Inc., 2014 hazardous conditions required by the mode of operation
Conn. Super. LEXIS 3021 (Conn. Super. Ct., Dec. 10, rule.
2014)
Disposition: Affirmed.
Outcome
Judgment affirmed.
Core Terms
mode of operation, pet, zone, foreseeable, customers, LexisNexis® Headnotes
hazard, messes, notice, animals, leashed, constructive
notice, regularly, slipped, puddle, self-service,
hazardous condition, premises, method of operation,
give rise, occurring, quotation, injuries, patrons, marks,
urine, dog
Evidence > Burdens of Proof > Allocation
Torts > ... > Proof > Evidence > Burdens of Proof
Case Summary
Torts > ... > General Premises Liability > Dangerous
Conditions > Known Dangers
Page 2 of 9
167 Conn. App. 573, *573; 145 A.3d 283, **283; 2016 Conn. App. LEXIS 324, ***1
HN1[ ] Burdens of Proof, Allocation Torts > ... > General Premises Liability > Dangerous
Traditionally, in a premises liability case, a plaintiff must
prove that the defendant had actual or constructive HN4[ ] Dangerous Conditions, Known Dangers
notice of the hazard that injured her. Connecticut has
adopted a narrow exception to that notice requirement The mode of operation rule is a narrow exception to the
when a store's self-service mode of operation creates traditional notice requirement under premises liability
an inherently foreseeable hazard. law.
Civil Procedure > Appeals > Standards of Torts > ... > Duty On
Review > De Novo Review Premises > Invitees > Business Invitees
HN2[ ] Standards of Review, De Novo Review Torts > ... > General Premises Liability > Dangerous
Whether a trial court properly construed and applied a
rule is a question of law over which an appellate court HN5[ ] Invitees, Business Invitees
will exercise plenary review.
It is appropriate to hold self-service businesses
responsible for injuries to customers that are a
foreseeable consequence of their use of that
Evidence > Burdens of Proof > Allocation
merchandising approach unless they take reasonable
precautions to prevent such injuries.
Torts > ... > Proof > Evidence > Burdens of Proof

Conditions > Duty to Maintain Evidence > Burdens of Proof > Allocation
Torts > ... > Duty On Torts > ... > Proof > Evidence > Burdens of Proof
Premises > Invitees > Business Invitees
Torts > ... > Duty On
Torts > ... > General Premises Liability > Dangerous Premises > Invitees > Business Invitees
HN3[ ] Burdens of Proof, Allocation Conditions > Known Dangers
A retail store owes a duty to a business invitee to Torts > ... > Elements > Causation > Causation in
maintain its premises in a reasonably safe condition. Fact
Generally, to prevail on a negligence claim as a
business invitee in a premises liability case, it is HN6[ ] Burdens of Proof, Allocation
incumbent upon the plaintiff to allege and prove that the
defendant either had actual notice of the presence of A plaintiff establishes a prima facie case of negligence
the specific unsafe condition which caused his injury or upon presentation of evidence that the mode of
constructive notice of it. The notice, whether actual or operation of a defendant's business gives rise to a
constructive, must be notice of the very defect which foreseeable risk of injury to customers and that the
occasioned the injury and not merely of conditions plaintiff's injury was proximately caused by an accident
naturally productive of that defect even though within the zone of risk. In such circumstances, requiring
subsequently in fact producing it. In the absence of a plaintiff to prove actual or constructive notice would be
allegations and proof of any facts that would give rise to unfair and unnecessary because businesses should be
an enhanced duty a defendant is held to the duty of aware of the potentially hazardous conditions that arise
protecting its business invitees from known, foreseeable from the way in which they conduct their business and
dangers. customer carelessness should be expected. A store
owner's mode of operation that increases the risk of
dangerous, transitory conditions affords notice when the
Page 3 of 9
operation invites inherently foreseeable or regularly Torts > ... > General Premises Liability > Dangerous
occurring hazards. Self-service operations give store Conditions > Known Dangers
customers additional freedom to browse and select the
merchandise they desire, they also pose foreseeable HN9[ ] Invitees, Business Invitees
hazards to those customers, who are generally less
careful than store employees in handling the The mode of operation rule requires an identifiable zone
merchandise. Essentially, stores engaging in of risk and it does not impose liability on a business if
foreseeably hazardous self-service operations may be the mode of operation of the business is not appreciably
deemed to have constructive notice of those conditions different from that of similar businesses.
when they result in injury.

Torts > ... > Duty On Premises > Invitees > Business Invitees
Torts > ... > General Premises Liability > Dangerous Conditions > Known Dangers
HN10[ ] Invitees, Business Invitees
The mode of operation rule is meant to be a narrow
The mode of operation exception to the notice exception to the notice requirements under traditional
requirements under traditional premises liability is meant premises liability.
to be a narrow one because nearly every business
enterprise produces some risk of customer interference.
Premises > Invitees > Business Invitees Torts > ... > General Premises Liability > Dangerous
Conditions > Known Dangers HN11[ ] Invitees, Business Invitees
HN8[ ] Invitees, Business Invitees For the three over-arching requirements of the mode of
operation rule to apply: (1) the defendant must have a
Self-service merchandising itself does not fall under the particular mode of operation distinct from the ordinary
mode of operation rule. Adopting such a rule would operation of a related business; (2) that mode of
significantly broaden the rule's underlying intent. The operation must create a regularly occurring or inherently
rule applies to businesses that employ a more specific foreseeable hazard; and (3) the injury must happen
method of operation within the general business within a limited zone of risk.
environment that is distinct from the ordinary, inevitable
way of conducting the sort of commerce in which the
business is engaged. The rule does not extend to all Torts > ... > Duty On
accidents caused by transitory hazards in self-service Premises > Invitees > Business Invitees
retail establishments, but rather, only to those accidents
that result from particular hazards that occur regularly, Torts > ... > General Premises Liability > Dangerous
or are inherently foreseeable, due to some specific Conditions > Known Dangers
method of operation employed on the premises.
Torts > ... > Duty On The mode of operation rule is inapplicable when a
Premises > Invitees > Business Invitees particular mode of operation is not considerably different
from that of similarly operated businesses.
Page 4 of 9
which proprietors should be on notice.

The mode of operation rule applies when a business
implements a more specific method of operation within
Proving actual or constructive notice of a hazard
the general business environment that is distinct from
remains an element of a negligence action when a
the ordinary, inevitable way of conducting the sort of
business is conducted in the ordinary manner of similar
commerce in which the business is engaged.
businesses.

The mode of operation rule may substitute for notice to
Although the zone of risk under the mode of operation
a retailer when the store's mode of operation invites
rule need not be limited to a precisely measurable area,
careless customer interference, creating an expected,
it cannot encompass the entire premises of a store. The
foreseeable hazard.
rule requires foreseeable hazards, not merely possible
ones.


Syllabus

The plaintiff sought to recover damages from the
Application of the mode of operation rule to premises defendant pet store for personal injuries she sustained
liability is meant to be a narrow one, and applies only to when she slipped and fell on a puddle of dog urine in
those areas wherein the risk of injury is continuous or the store, which regularly allowed customer's to bring
foreseeably inherent as a result of a store's mode of leashed pets inside the store. The plaintiff claimed that
operation. These areas have been construed as a zone the defendant was negligent in that it had failed to
of risk wherein an owner should take extra precautions prevent, warn of, or clean up the urine on which she had
based on its mode of operation. The underlying slipped. At trial, the plaintiff provided no evidence that
rationale is to impose liability for specific areas wherein the defendant had actual or constructive notice of the
there is a reasonably foreseeable risk. It is unfair and urine puddle. She argued that proof of notice was
unnecessary to require proof of actual or constructive unnecessary because, under the mode of operation
notice under the mode of operation rule; it would be rule, she only had to prove that the defendant's
equally unfair to impose liability under the mode of particular mode of operation created an inherently
operation when there is no identifiable zone of risk of foreseeable or regularly occurring hazard, and the
Page 5 of 9
accident here occurred within an identifiable zone of Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687
risk. The trial court rendered judgment in favor of [***2] (2002). Our Supreme Court adopted a narrow exception
the defendant, concluding that the mode of operation to that notice requirement in Kelly v. Stop & Shop, Inc.,
rule was inapplicable under the facts of the case. Held 281 Conn. 768, 770, 918 A.2d 249 (2007), where in it
that the plaintiff could not prevail on her claim that the held that a supermarket that operated a self-service
trial court improperly determined that the mode of salad bar was liable for [*575] slips and falls suffered
operation rule was inapplicable, the court having by patrons near the service area because the store's
properly found that there was no identifiable zone of risk self-service mode of operation created an inherently
where the defendant should have been on notice of foreseeable hazard. In the present case, the plaintiff,
continuous or inherently foreseeable hazards, as there Katerina Porto, seeks to extend that holding to pet
was nothing in the record to suggest that the leashed stores that allow leashed animals inside its stores,
pets preferred a particular area of the store or that there arguing that their "pet-friendly mode of operation"
was an area of the store where pet messes occurred [**286] caused her to slip and fall in dog urine while a
frequently; moreover, the plaintiff's contention that customer at the store of the defendant, Petco Animal
leashed pets should be considered "moving targets," Supplies Stores, Inc.1 The trial court held that the mode
and that the zone of risk should be construed as where of operation rule did not apply under those facts
the pet messes occurred was without merit, as leashed and [***4] rendered judgment in favor of the defendant.
pets were found throughout the store on a daily basis, We agree, and affirm the judgment of the trial court.
and adopting the plaintiff's position would render the
entire store a zone of risk; furthermore, the mode of In its memorandum of decision the court found the
operation rule requires foreseeable hazards, not merely following facts. The plaintiff is a healthy, twenty-eight
possible ones, and pet messes are possible under a pet year old woman employed as a registered nurse. On
friendly mode of operation, but possibilities alone do not August 20, 2012, the plaintiff and her friend visited the
give rise to the type of regularly occurring or defendant's Hamden location to return a bag of pet food.
inherently [***3] foreseeable hazardous conditions They entered the store, and on their way to the cash
required by the mode of operation rule. register, the plaintiff slipped on a puddle of liquid. The
plaintiff believed that the liquid was dog urine based on
Counsel: Chet L. Jackson, for the appellant (plaintiff). her experience as a dog owner. During her fall, the
plaintiff tried to catch herself, [***5] but rolled her ankle
in the process and sustained several injuries.
Kathleen M. Grover, with whom was P. Jo Anne Burgh,
for the appellee (defendant). The plaintiff was generally aware that the defendant
allowed leashed animals in the store and she
acknowledged at trial that "she should keep an eye out
on the floor when walking in the defendant's store." She
Judges: DiPentima, C. J., and Alvord and Gruendel, Js. was unaware of any animals in the store on August 20,
GRUENDEL, J. In this opinion the other judges 2012, and has never seen any other puddles in the
concurred. defendant's stores similar to the one she slipped on.
[*576] Following her fall, the plaintiff notified the

defendant's cashier that "she had just fallen in what she
Opinion by: GRUENDEL believed was urine." The plaintiff was informed that
1 The plaintiff raised three claims on appeal: (1) the court

Opinion improperly held that the mode of operation rule did not apply
at all on the facts of this case; (2) the court erroneously found
that, even if the rule did apply, the plaintiff had not established
a prima facie case of negligence under it; and (3) the court
[**285] [*574] GRUENDEL, J. HN1[ ] Traditionally, erroneously found that, even if the plaintiff had established
in a premises liability case, a plaintiff must prove that prima facie negligence, the defendant rebutted it with evidence
the defendant had actual or constructive notice of the of reasonable precautions. In light of our resolution of the
hazard that injured her. Baptiste v. Better Val-U plaintiff's first claim, we need not address her second and third
claims.
Page 6 of 9
someone would clean up the mess and that Timothy of selling consumer/pet products and was acting
Smith, the store manager, would complete an accident through its agents, servants and/or employee." The
report. On August 20, 2012, Smith was the assistant defendant further admitted that it "maintained,
manager responsible for the defendant's Hamden store, controlled, and possessed the subject premises." The
and he had worked for the defendant in various defendant denied the plaintiff's allegations of negligence
locations and capacities throughout the prior nine years. and "pleaded insufficient knowledge to the remainder of
The plaintiff testified that Smith saw her fall on the the complaint's paragraphs, leaving the plaintiff to her
store's surveillance system, but Smith later testified that proof." The matter was tried before the court on August
he was unsure if he had. 13, 2014.
Smith completed the incident report electronically and At trial, the plaintiff provided no evidence that the
described the cause as "Water/Ice." That categorization defendant had actual or constructive notice of the
of the accident was predetermined by a drop- puddle on the floor where [***8] she slipped and fell.
down [***6] menu and was not Smith's description. She argued that proof of notice was unnecessary
Smith also described the incident in his own words, because, under the mode of operation rule, she need
stating that the plaintiff "had slipped in dog urine." Smith only prove that the defendant's particular mode of
believed that the incident was not a "questionable case," operation created an inherently foreseeable or regularly
and he indicated that in his report, stating that the occurring hazard, and the accident occurred within an
plaintiff's description was credible. identifiable zone of risk.
At trial, Smith described the defendant as "a pet In its memorandum of decision, the court reasoned that
specialty store that attempts to foster relationships with the mode of operation rule was inapplicable to the facts
its customers and assist them in providing a happy and of this case because the "hazardous condition
healthy home for their pets." The defendant specifically appear[ed] to have been brought into the store" from the
permits "customers to bring any animal into its store as [*578] outside, distinguishing this from the "typical
long as the animal is on a leash." Smith described the case in which a hazardous condition is caused by the
defendant's policy as an attempt to "foster a spilling or dropping of an item for sale" already within
relationship" with customers and to "provide its the store. Further, the court found that, even if the mode
customers with animal-specific assistance, such as of operation rule applied, the defendant took reasonable
determining the proper size product for an animal." precautions to "keep its premises free of hazardous
conditions."
Smith testified that the defendant expects occasional
pet messes and that there are sanitation stations On appeal, the plaintiff claims that the court improperly
throughout the store to address them. Although no held that the mode of operation rule did not extend to
single employee is responsible for cleaning up pet the defendant's "pet-friendly method of operation." She
messes, employees regularly walk the [**287] store argues that her case falls under the rule because
aisles to talk with [*577] customers, and the allowing leashed pets into the store created an
defendant's policy is for immediate cleanup when inherently foreseeable risk of pet messes, and the
employees become aware of pet messes. [***7] Smith leashed pets should be considered [***9] "moving"
testified that "there were no further incidents or zones of risk. We disagree.
complaints regarding puddles in the store on August 20,
2012." Further, there were no similar accidents in the The plaintiff's principal claim concerns the proper
prior six years Smith worked at the store and pet construction and application of the mode of operation
messes occurred infrequently.2 rule within premises liability. HN2[ ] Whether the trial
court properly construed and applied the mode of
On July 26, 2013, the plaintiff brought this action against operation rule is a question of law over which we
the defendant, alleging that the store had negligently exercise plenary review. See Fisher v. Big Y Foods Inc.,
failed to prevent, warn of, or clean up the dog urine on 298 Conn. 414, 424, 3 A.3d 919 (2010).
which she slipped and fell. The defendant filed an
answer, admitting that at all times it was "in the business HN3[ ] It is undisputed that a retail store owes a duty
to a business invitee to maintain its premises "in a
reasonably safe condition." Baptiste v. Better Val-U
2 Smith
testified that "approximately one to two customers per Supermarket, Inc., supra, 262 Conn. 140. Generally, to
week would report a puddle" caused by a pet. prevail on a negligence claim as a business invitee in a
Page 7 of 9
premises liability case, "it [is] incumbent upon [the merchandise. . . . Essentially, the courts have
plaintiff] to allege and prove that the defendant either recognized that stores engaging in foreseeably
had actual notice of the presence of the specific unsafe hazardous self-service operations may be deemed to
condition which caused [his injury] or have constructive notice of those conditions when they
constructive [**288] notice of it. . . . [T]he notice, result in injury." (Internal quotation marks omitted.) Id.,
whether actual or constructive, must be notice of the 779-80.
very defect which occasioned the injury and not merely
of conditions naturally productive of that defect even Two subsequent cases have clarified the scope of the
though subsequently in fact producing it. . . . In the mode of operation rule. First, in Fisher v. Big Y Foods
absence of allegations and proof of any [*579] facts Inc., supra, 298 Conn. 437, our Supreme Court
that would give rise to an enhanced duty . . . [a] expressed a concern about an overly expansive
defendant is held to the duty of protecting its business application of the mode of operation rule, emphasizing
invitees from known, foreseeable dangers." that HN7[ ] "the exception is meant to be a narrow
(Citations [***10] omitted; internal quotation marks one" because nearly every business enterprise
omitted.) Id. produces some risk of customer interference. [***12] Id.
In Fisher, a supermarket customer slipped and fell on a
HN4[ ] The mode of operation rule is a narrow puddle of liquid located in one of the store's aisles. Id.,
exception to the traditional notice requirement and arose 416-17. The puddle was purportedly from a fruit cocktail
from our Supreme Court's decision in Kelly v. Stop & container that fell from the store's shelf. The plaintiff
Shop, Inc., supra, 281 Conn. 770. In Kelly, a pursued a claim under the mode of operation rule and
supermarket patron slipped and fell on a piece of lettuce prevailed at trial. Id., 417.
that dropped from a self-service salad bar located in the
store. Id. Although there was no evidence that the store On appeal, our Supreme Court reversed the judgment
had notice of the fallen lettuce, the court held that HN5[ and held that HN8[ ] "self-service merchandising itself"
] "it is appropriate to hold [self-service businesses] does not fall under the mode of operation rule. Id., 424.
responsible for injuries to customers that are a The court recognized that adopting such a rule would
foreseeable consequence of their use of that significantly broaden the rule's underlying intent. Id.
merchandising approach unless they take reasonable [**289] The court reasoned that the rule applied to
precautions to prevent such injuries." (Emphasis businesses that employed a more specific method of
omitted.) Id., 786. The court further stated that HN6[ ] operation within the general business environment that
"a plaintiff establishes a prima facie case of negligence is distinct from the ordinary, inevitable way of
upon presentation of evidence that the mode of conducting the sort of commerce in which the business
operation of the defendant's business gives rise to a is engaged. Id., 427. The court emphasized that the rule
foreseeable risk of injury to customers and that the does not extend to "all accidents caused by transitory
plaintiff's injury was proximately caused by an accident hazards in self-service retail establishments, but rather,
within the zone of risk." Id., 791. only to those accidents that result from particular
hazards that occur regularly, or are inherently
Our Supreme Court in Kelly recognized that, in such foreseeable, due to some specific method of operation
circumstances, requiring a plaintiff to prove actual or employed on the premises." Id., 423.
constructive notice would be "unfair and unnecessary"
because businesses "should be aware [***11] of the [*581] Second, in Konesky v. Post Road
potentially hazardous conditions that arise from the way Entertainment, 144 Conn. App. 128, 144, 72 A.3d 1152
in which they conduct their business" and customer (2013), this court clarified both that [***13] HN9[ ] the
carelessness should be expected. Id., 778. The court mode of operation rule required an identifiable zone of
reasoned that a store owner's mode of operation that risk and that it did not impose liability on a business if
increases the risk of "dangerous, transitory conditions" the business' mode of operation was not appreciably
affords notice when the operation invites inherently different from that of similar businesses. In Konesky, a
foreseeable or regularly occurring hazards. Id., 780. bar patron was injured after she slipped and fell on a
"[S]elf-service operations give store customers puddle of water. Id, 131. The puddle was created from
additional freedom to browse and select the "beer tubs" the bar used to serve cold drinks. Id. The
merchandise they desire, they also pose foreseeable service of beer from these tubs was presented as the
hazards to those customers, who [*580] are generally defendant's mode of operation. Id. At trial, the plaintiff
less careful than store employees in handling the successfully claimed that the defendant's mode of
Page 8 of 9
operation created the "slippery and hazardous" HN14[ ] Second, the mode of operation rule may
condition. Id. substitute for notice to a retailer when the store's mode
of operation invites careless customer interference,
On appeal, this court disagreed, rejecting the notion that creating an expected, foreseeable hazard. Kelly v. Stop
a defendant incurs liability "under the mode of operation & Shop, Inc., 281 Conn., supra, 788. Here, the primary
doctrine simply by serving chilled beer." Id., 142-43. distinction from the typical mode of operation case is the
This court did not accept that the defendant's "ice tubs" lack of a causal connection between the store's conduct
constituted "an inherently hazardous mode of operation" and [*583] foreseeable careless customer interference
because "the entire [premises] would become a zone of in a particular zone of risk.4 Although the defendant's
risk simply because drinks do sometimes spill or store allowed customers to bring their leashed pets
otherwise produce slippery surfaces." (Internal quotation inside and being pet friendly is one of their "core
marks omitted.) Id., 143. We explained that such an values," that policy alone does not sufficiently relinquish
expansive zone of risk "would be inconsistent with the the plaintiff from proving actual or constructive notice of
Supreme Court's admonition that HN10[ ] the mode of the hazard. See Konesky v. Post Road Entertainment,
operation rule [***14] is meant to be a narrow exception supra, 144 Conn. App. 137-38. In our view, animal
to the notice requirements under traditional premises messes are not inherently foreseeable hazardous
liability." Id., 143-44. conditions resulting from a pet friendly business policy,
particularly when the record fails to show that injuries
From these three cases, we distill HN11[ ] three caused by pet messes occurred regularly. The plaintiff's
overarching requirements for the mode of operation rule injury was the only one that occurred during the
to apply: (1) the defendant must have a particular mode
responsible manager's tenure.5 Although there is the
of operation distinct from the ordinary operation of a
potential for pet messes to occur under the defendant's
related business; (2) that mode of operation must create
mode of operation, that potential alone does not give
a regularly occurring or inherently foreseeable hazard;
rise to a regularly occurring or inherently
and (3) the injury must happen within a limited zone of
foreseeable [***17] hazard. See Id.
risk.
HN15[ ] Third, application of the mode of operation
The facts of the present case do not meet any of these
rule "is meant to be a narrow one, and applies only to
three requirements. HN12[ ] First, the rule is
inapplicable [*582] when a particular mode of
operation is not considerably different from that of
precedential value of the case in Connecticut, Depuy is
similarly operated businesses. See id., 141. The plaintiff
categorically distinct from this case. The defendant in Depuy
here argues that the defendant's pet friendly mode of allowed pets into its store, but the pets roamed free without
operation created a reasonably foreseeable pet mess leashes. Further, the pets frequently knocked over wet floor
hazard that caused the plaintiff's injuries. HN13[ ] The signs and pet messes occurred at a substantially higher rate.
rule applies when a business implements "a more The defendant's mode of operation diverged from the general
specific method of operation within the general business operation of a pet store because it was aware of the hazards
environment that is distinct from the ordinary, inevitable caused by its "autonomous pet" policy. The defendant
way of conducting the sort of commerce in which the operated its business in a way that invited customer
business is engaged." (Emphasis omitted; internal carelessness and, as a result, regularly caused hazards. We
quotation marks omitted.) Id., 139. Here, the defendant do not find the case "instructive" as the plaintiff claims, nor
does it assist us in understanding the rule's
operated as [***15] any other pet store would operate;
application. [***16]
it simply allowed leashed animals into the store. "Merely
4 The trial court also noted that the mode of operation rule
describing the customary way of conducting a particular
kind of business is not enough." Id., 139-40. The record typically involves hazardous conditions "caused by the spilling
does not demonstrate a specific [**290] method of or dropping of an item for sale that is already within the store."
operation that deviates from the general operation of Because that particular claim was not squarely raised in this
case, we do not reach the question of whether that distinction
similar businesses.3
is legally relevant.
5 The court noted that "the evidence demonstrated that there
3 In her appellate brief, the plaintiff cites an unpublished were only approximately one to two animal messes per week
Washington case, Dupuy v. Petsmart, 155 Wash. App. 1047 in the defendant's store and that the plaintiff's was the only
(Wash. Ct. App. 2010), for the proposition that it is instructive incidence of a slip and fall in animal urine during [the store
to the facts at issue. Notwithstanding the absence of any manager's] six years at the store."
Page 9 of 9
those areas where the risk of injury is continuous or 144 Conn. App. 141. In Konesky, this court limited the
foreseeably inherent" as a result of a store's mode of zone of risk because "[i]f the mode of operation rule
operation. (Emphasis added; internal quotation marks could be satisfied by [customers] carrying wet glasses,
omitted.) Fisher v. Big Y Stores, Inc., supra, 298 Conn. there would be no effective limitation on the application
437. These "areas" have been construed as a zone of of the rule." Id., 144. Ultimately, the plaintiff's "moving
risk where an owner should take extra precautions target" theory fails for the same reasons; the zone of
based on its mode of operation. Id. The underlying danger would encompass the entire store.
rationale is to impose liability for specific areas where
there is a reasonably foreseeable risk. Id. In Kelly, our In sum, merely allowing a leashed pet into the
Supreme Court stated that it is "unfair [***18] and defendant's store does not give rise to the conduct
unnecessary" [*584] to require proof of actual or against which the rule intends to impose liability. See
constructive notice under the mode of operation rule; it Fisher v. Big Y Foods, Inc., supra, 298 Conn. 423.
would be equally unfair to impose liability under the HN16[ ] Proving [***20] actual or constructive notice
mode of operation when there is no identifiable zone of of a hazard remains an element of a negligence action
risk of which proprietors should be on notice. Kelly v. when a business is conducted in the ordinary manner of
Stop & Shop, Inc., supra, 281 Conn. 778. similar businesses, as here. HN17[ ] Further, although
the zone of risk need not be limited to a precisely
[**291] The zone of risk identified in Kelly was the area measurable area, it cannot encompass the entire
located near the salad bar where the plaintiff's injury premises of a store. Finally, the rule requires
occurred. Id., 796. Salad bar customers frequently foreseeable hazards, not merely possible ones. Pet
spilled lettuce onto the floor and thus created a zone of messes are undoubtedly possible under a pet friendly
risk for grocery store patrons. Id., 774. Conversely, in mode of operation, but possibilities alone do not give
Konesky, we held that there was no liability under the rise to the type of regularly occurring or inherently
mode of operation rule because otherwise the entire foreseeable hazardous conditions required by the mode
establishment would be rendered a zone of risk, thus of operation rule.
rendering the zone of risk requirement "superfluous."
The judgment is affirmed.
Konesky v. Post Road Entertainment, supra, 144 Conn.
App. 143. In this opinion the other judges concurred.
Under the circumstances before us, there is no
identifiable zone of risk where the defendant should be
End of Document
on notice of continuous or inherently foreseeable
hazards. The plaintiff contends that leashed animals
should be considered "moving targets" and that the
zone of risk should be construed as where the pet
messes occurred. This simply does not comport with our
understanding of the zone of risk requirement. Leashed
animals are found throughout the store on a
daily [***19] basis and adopting the plaintiff's position
would render the entire store a zone of risk. Although
we agree with the plaintiff that the zone of risk need not
be limited to a precise, measurable area, some
limitations are required. Here, nothing in the record
suggests that the leashed pets preferred a particular
area of the store, or that there was an area of the store
where pet messes occurred frequently. Without specific
proof of a particular zone of risk, we are unwilling to
adopt the plaintiff's proposed standard.
In fact, the "moving target" theory raised by the plaintiff

was discussed in Konesky, where patrons walked
[*585] around the bar with cold drinks that dripped on
the floor. Konesky v. Post Road Entertainment, supra,

Porto v. Petco

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Porto v. Petco

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Date and Time: Tuesday, March 16, 2021 8:12:00 PM EDT

Job Number: 139093447

Porto v. Petco Animal Supplies Stores, Inc.

Torts > ... > General Premises Liability > Dangerous

Torts > ... > Duty On

which proprietors should be on notice.

Torts > ... > Duty On

Torts > ... > Duty On

Torts > ... > Duty On

Torts > ... > General Premises Liability > Dangerous

HN15[ ] Invitees, Business Invitees

[*576] Following her fall, the plaintiff notified the

1 The plaintiff raised three claims on appeal: (1) the court

In fact, the "moving target" theory raised by the plaintiff

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