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3.9-17 Commercial Mode of Operation

Revised to December 10, 2010

The plaintiff has alleged that (his/her) injuries were caused by the mode by which the defendant operated the business, in particular, by the way the defendant designed, constructed or maintained <identify the mode of operation, e.g., the self-service arrangement>.

This is called the mode of operation rule.  Under this rule, the plaintiff need not show that the defendant had notice of the particular item or defect that caused the injury.  Rather, the plaintiff must prove:

1.  that this mode of operation gave rise to a foreseeable risk of injury to customers [or other invitees],

2.  that the defendant failed to exercise reasonable care to avoid foreseeable accidents created by this mode of operation, and

3.  that the plaintiff's injury was proximately caused by such failure.

[It is not the law that a defendant who runs a business guarantees the safety of those who come to the premises.  If a customer [or other invitee] is injured because of a negligent act that the defendant cannot reasonably be expected to foresee or guard against, then the defendant is not liable.]1

1 This language can be used here if it has not been previously used in the general premises liability part of the charge.  Kelly v. Stop & Shop, Inc., 281 Conn. 768, 790 (2007).


Fisher v. Big Y Foods, Inc., 298 Conn. 414 (2010); Kelly v. Stop & Shop, Inc., 281 Conn. 768, 791-93 (2007).


It will be most common that this theory will be advanced by the plaintiff as an alternative to the traditional premises liability theory that requires proof of actual or constructive notice.  The charge should make clear that the plaintiff can recover under either theory.



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