This article will address the use of "mode of operation" theory in so-called negligent stacking cases against retailers for premises liability. Adding mode of operation analysis into the mix creates new considerations for retailers in defense of cases of falling merchandise. While many courts look solely to the method of stacking standing on its own in making this determination, some have introduced the concept of mode of operation into the analysis. By introducing this consideration, courts invite inquiry into the reasonably foreseeable interference of customers. Being on the lookout for this issue is important early in the pleading process as well as during the presentation of evidence at trial.
This week, the Connecticut Supreme Court issued a decision in DiPietro v. Farmington Sports Arena, LLC, regarding the liability of a business owner for injuries to patrons. In the particular case, an eleven-year old was injured while playing soccer, because her foot struck the artificial playing surface. The Connecticut Supreme Court found that the business was not at fault, outlining the standards for determining when fault may be found. A Connecticut Business Owner should be aware of the following: