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Porto v. Petco Animal Supplies Stores Inc.

Court of Appeals of Connecticut

August 16, 2016


          Argued May 18 2016.

         (Appeal from Superior Court, judicial district of New Haven, Burke, J.)

          Chet L. Jackson, for the appellant (plaintiff).

          Kathleen M. Grover, with whom was P. Jo Anne Burgh, for the appellee (defendant).

          DiPentima, C. J., and Alvord and Gruendel, Js.


          GRUENDEL, J.

         Traditionally, in a premises liability case, a plaintiff must prove that the defendant had actual or constructive notice of the hazard that injured her. Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 140, 811 A.2d 687 (2002). Our Supreme Court adopted a narrow exception to that notice requirement in Kelly v. Stop & Shop, Inc., 281 Conn. 768, 770, 918 A.2d 249 (2007), where in it held that a supermarket that operated a self-service salad bar was liable for slips and falls suffered by patrons near the service area because the store’s self-service mode of operation created an inherently foreseeable hazard. In the present case, the plaintiff, Katerina Porto, seeks to extend that holding to pet stores that allow leashed animals inside its stores, arguing that their ‘‘pet-friendly mode of operation’’ caused her to slip and fall in dog urine while a customer at the store of the defendant, Petco Animal Supplies Stores, Inc.[1] The trial court held that the mode of operation rule did not apply under those facts and rendered judgment in favor of the defendant. We agree, and affirm the judgment of the trial court.

         In its memorandum of decision the court found the following facts. The plaintiff is a healthy, twenty-eight year old woman employed as a registered nurse. On August 20, 2012, the plaintiff and her friend visited the defendant’s Hamden location to return a bag of pet food. They entered the store, and on their way to the cash register, the plaintiff slipped on a puddle of liquid. The plaintiff believed that the liquid was dog urine based on her experience as a dog owner. During her fall, the plaintiff tried to catch herself, but rolled her ankle in the process and sustained several injuries.

         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 was unaware of any animals in the store on August 20, 2012, and has never seen any other puddles in the defendant’s stores similar to the one she slipped on.

         Following her fall, the plaintiff notified the defendant’s cashier that ‘‘she had just fallen in what she believed was urine.’’ The plaintiff was informed that someone would clean up the mess and that Timothy Smith, the store manager, would complete an accident report. On August 20, 2012, Smith was the assistant manager responsible for the defendant’s Hamden store, and he had worked for the defendant in various locations and capacities throughout the prior nine years. The plaintiff testified that Smith saw her fall on the store’s surveillance system, but Smith later testified that he was unsure if he had.

         Smith completed the incident report electronically and described the cause as ‘‘Water/Ice.’’ That categorization of the accident was predetermined by a dropdown menu and was not Smith’s description. Smith also described the incident in his own words, stating that the plaintiff ‘‘had slipped in dog urine.’’ Smith believed that the incident was not a ‘‘questionable case, ’’ and he indicated that in his report, stating that the plaintiff’s description was credible.

         At trial, Smith described the defendant as ‘‘a pet specialty store that attempts to foster relationships with its customers and assist them in providing a happy and healthy home for their pets.’’ The defendant specifically permits ‘‘customers to bring any animal into its store as long as the animal is on a leash.’’ Smith described the defendant’s policy as an attempt to ‘‘foster a relationship’’ with customers and to ‘‘provide its customers with animal-specific assistance, such as determining the proper size product for an animal.’’

         Smith testified that the defendant expects occasional pet messes and that there are sanitation stations throughout the store to address them. Although no single employee is responsible for cleaning up pet messes, employees regularly walk the store aisles to talk with customers, and the defendant’s policy is for immediate cleanup when employees become aware of pet messes. Smith testified that ‘‘there were no further incidents or complaints regarding puddles in the store on August 20, 2012.’’ Further, there were no similar accidents in the prior six years Smith worked at the store and pet messes occurred infrequently.[2]

         On July 26, 2013, the plaintiff brought this action against the defendant, alleging that the store had negligently failed to prevent, warn of, or clean up the dog urine on which she slipped and fell. The defendant filed an answer, admitting that at all times it was ‘‘in the business of selling consumer/pet products and was acting through its agents, servants and/or employee.’’ The defendant further admitted that it ‘‘maintained, controlled, and possessed the subject premises.’’ The defendant denied the plaintiff’s allegations of negligence and ‘‘pleaded insufficient ...

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