The Mode of Operation Rule Does Not Apply to Pet Stores

Porto, a customer at Petco, filed suit when she was injured after a slip and fall on dog urine inside the store. The trial court determined that the mode of operation rule did not apply to pet stores and injuries caused by dog urine. The plaintiff appealed, arguing that the mode of operation rule would apply, as permitting leashed pets to enter the store inevitably leads to a foreseeable risk of resulting messes and the pets create “‘moving’ zones of risk.”

The Appellate Court disagreed. Citing a Connecticut Supreme Court case argued by Regnier, Taylor, Curran & Eddy attorneys, Fisher v. Big Y, 298 Conn. 414, the court observed that the mode of operation rule was designed to apply only to a narrow set of factual circumstances. First, the selected method of operation must be distinct from the ordinary way in which similar businesses operate. Second, the store’s conduct creates a risk of customer interference that creates an “expected, foreseeable hazard.” Third, the injury must happen within a limited zone of risk, which is a specific area in which the identified danger is either continuously occurring or inherently foreseeable.

Based upon these standards, the Court determined that permitting leashed pets within the store did not constitute a mode of operation under the narrow definition. The zone of risk cannot be defined as the entire store; it must be some limited space. Further the mode of operation rule necessitates a foreseeable hazard, not merely the possibility a hazard will result.

Porto v. Petco Animal Supplies Stores, Inc., 167 Conn.App. 573 (2016)