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*********************************************** 
ALICIA HILL v. OSJ OF BLOOMFIELD, LLC

(AC 42397)

DiPentima, C. J., and Moll and Bear, Js.*

Syllabus

The plaintiff, a business invitee of the defendant company, brought a premises liability action against the defendant, seeking damages for personal

injuries she sustained when two empty boxes fell off a shelf and struck

her in the head and shoulder as she was walking in an aisle of the

defendant’s store. After a trial to the court, the trial court rendered

judgment for the plaintiff. The court applied the mode of operation rule

enunciated in Kelly v. Stop & Shop, Inc. (281 Conn. 768), and concluded

that the boxes fell and struck the plaintiff as a result of the defendant’s

negligence. The court determined that the store manager, M, and another

employee, R, had been stocking merchandise in an adjacent aisle when

a box on the top shelf of that aisle toppled over and into the boxes on

the top shelf of the aisle in which the plaintiff was walking, thereby

causing the boxes to fall off the shelf and onto the plaintiff. On appeal,

the defendant claimed that the trial court improperly applied the mode

of operation rule. Held that the evidence did not support the imposition

of liability under the mode of operation rule or the affirmative act rule,

under which proof of notice is not necessary because the defendant

itself created the unsafe condition, as there was no evidence as to what

caused the boxes to fall on the plaintiff: the plaintiff, relying on the mode

of operation rule, failed to make out a prima facie case of negligence,

as the record did not demonstrate that the defendant had a specific

method of operation that was different from the general operation of

a similar business, the only evidence about the regularity of any hazard

came from M, who was unaware of merchandise ever falling onto a

customer, the potential for which did not give rise to a regularly

occurring or inherently foreseeable hazard, and the record was devoid

of evidence that the plaintiff’s injuries occurred within a limited zone

of risk where the risk of injury was continuous or foreseeably inherent

as a result of the mode of operation at issue; moreover, the evidence

was insufficient to establish that an affirmative act on the part of the

defendant caused the boxes to fall on the plaintiff, as M’s testimony

that neither he nor R touched the top shelf of the aisle in which they

were working was not contradicted by any other evidence, there was

no evidence that their actions in that aisle disrupted the boxes on the

top shelf, and the court, even if it disbelieved M’s statements, was not

allowed to infer the opposite proposition, much less to infer that M and

R negligently knocked over those boxes into the boxes that struck the

plaintiff, and a photograph of the shelving that the plaintiff took following

the incident was insufficient to permit an inference that M and R engaged

in an affirmative act that led to the boxes falling on her.

Argued January 9—officially released September 15, 2020

Procedural History

Action to recover damages for the defendant’s alleged

negligence, brought to the Superior Court in the judicial

district of Hartford and tried to the court, Gordon, J.;

judgment for the plaintiff, from which the defendant

appealed to this court. Reversed; judgment directed.

Bruce H. Raymond, with whom was Evan K. Buchberger, for the appellant (defendant).

Domenic D. Perito, with whom, on the brief, was

Richard E. Joaquin, for the appellee (plaintiff).
Opinion

MOLL, J. ‘‘Drawing logical deductions and making

reasonable inferences from facts in evidence, whether

that evidence be oral or circumstantial, is a recognized

and proper procedure in determining the rights and obligations of litigants, but to be logical and reasonable they

must rest upon some basis of definite facts, and any

conclusion reached without such evidential basis is a

mere surmise or guess.’’ (Internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church

Corp., 250 Conn. 14, 34, 734 A.2d 85 (1999). This important principle lies at the heart of this premises liability

appeal. The defendant, OSJ of Bloomfield, LLC, doing

business as Ocean State Job Lot, appeals from the judgment of the trial court, rendered after a bench trial, in

favor of the plaintiff, Alicia Hill, for injuries she sustained when two empty cardboard boxes fell onto her

head and shoulder from the top shelf of the aisle she

was browsing. On appeal, the defendant claims that the

trial court (1) improperly applied the mode of operation

rule as a basis for finding the defendant liable in negligence, and (2) erroneously found that the defendant’s

merchandise stacking methods caused the boxes to fall

on the plaintiff.1 The plaintiff argues that the judgment

should be affirmed because she proved her premises

liability claim under the affirmative act rule. We conclude that the evidence adduced at trial does not support the imposition of liability on the basis of the mode

of operation rule or the affirmative act rule. Accordingly, we reverse the judgment of the trial court and

remand the case with direction to render judgment for

the defendant.

The trial court’s memorandum of decision sets forth

the following recitation, which is relevant to our resolution of this appeal. ‘‘The plaintiff testified that [on July

1, 2015] she was walking down the stationery aisle of

the [defendant’s] store when two empty boxes fell off

of a shelf to her right and struck her in the head and

right shoulder. [Devin] Gordon, [another shopper in the

store], testified that he was in the same aisle and saw

the boxes fall off the shelf and strike the plaintiff. The

plaintiff testified that prior to the boxes falling on her,

she saw two employees of the defendant stocking merchandise in the Internet coupon aisle directly adjacent

to the stationery aisle. [The defendant’s store manager,

Aron Moore] admitted that he and another employee

were stocking merchandise in the Internet coupon aisle

in the moments preceding the incident, and that as soon

as they heard a loud noise, they entered the stationery

aisle where they saw the plaintiff and Gordon, who was

holding one of the boxes.

‘‘Moore testified that the top shelf of the Internet

coupon aisle is seven feet tall and is used as a ‘profile

shelf’ to hold overstocked merchandise. According to

Moore, the top shelf of the Internet coupon aisle is
twelve inches wide and six inches higher than the top

shelf of the stationery aisle. The plaintiff introduced a

photograph that she took within minutes of the accident

showing the top shelves of the stationery aisle and the

Internet coupon aisle. The photograph shows a series

of boxes containing nine inch fans stacked one on top

of the other on the top shelf of the Internet coupon

aisle. The photograph also shows one of the boxes

containing the nine inch fans hanging over the box

below it and cantilevered in the direction of the stationery aisle. The [photograph] also shows a gap in the

top row of stacked nine inch fans in a location directly

adjacent to the top shelf of the stationery aisle where

the empty boxes had been displayed immediately before

they fell. The [photograph] also shows one of the nine

inch fan boxes in this precise location.’’

On June 13, 2017, the plaintiff commenced this action,

alleging that she sustained injuries to her head, neck,

and right shoulder as a result of the boxes falling onto

her and that the incident was caused by the negligence

of the defendant. On November 8, 2018, the case was

tried to the court. Three witnesses testified: Moore (the

store manager), Gordon (the eyewitness), and the plaintiff. Thereafter, the parties submitted posttrial briefs.

On December 7, 2018, the trial court issued a memorandum of decision rendering judgment in favor of the

plaintiff. Setting forth the principles from this court’s

decision in Meek v. Wal-Mart Stores, Inc., 72 Conn. App.

467, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d

278 (2002), the court concluded that the plaintiff ‘‘sustained her burden of proving by a fair preponderance

of the evidence that the empty display boxes fell and

struck the plaintiff as a result of the defendant’s negligence.’’ Specifically, the court found that ‘‘Moore and

another employee of the defendant were stocking merchandise in the Internet coupon aisle when one of the

nine inch fan boxes on the top shelf of the Internet

coupon aisle toppled over and into the display boxes

on the top shelf of the stationery aisle, thereby causing

the display boxes to fall off the shelf and onto the

plaintiff.’’ The court awarded the plaintiff $23,001.96 in

past medical expenses and $7500 for pain and suffering

for a total of $30,501.96 in damages. This appeal followed. Additional facts will be set forth as necessary.

The defendant principally claims on appeal that the

trial court improperly applied the mode of operation

rule in finding the defendant liable. Specifically, the

defendant maintains that the record is devoid of any

evidence that (1) the defendant employed a particular

mode of operation that is distinct from a similar business, (2) such mode of operation created a regularly

occurring or inherently foreseeable hazard, and (3) the

plaintiff’s injury occurred within a limited zone of risk.

We agree with the defendant and conclude that the

evidence at trial did not support the application of the

mode of operation rule.
We begin with the standard of review and general

principles of premises liability. ‘‘[T]he scope of our

appellate review depends [on] the proper characterization of the rulings made by the trial court. To the extent

that the trial court has made findings of fact, our review

is limited to deciding whether such findings were clearly

erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must

decide whether its conclusions are legally and logically

correct and find support in the facts that appear in the

record.’’ (Internal quotation marks omitted.) Kelly v.

Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249

(2007). ‘‘A finding of fact is clearly erroneous when

there is no evidence in the record to support it . . .

or when although there is evidence to support it, the

reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.’’ (Internal quotation marks omitted.) Lyme

Land Conservation Trust, Inc. v. Platner, 325 Conn.

737, 755, 159 A.3d 666 (2017). ‘‘In a case tried before a

court, the trial judge is the sole arbiter of the credibility

of the witnesses and the weight to be given specific

testimony. . . . On appeal, we will give the evidence

the most favorable reasonable construction in support

of the verdict to which it is entitled.’’ (Internal quotation

marks omitted.) Coppedge v. Travis, 187 Conn. App.

528, 532, 202 A.3d 1116 (2019).

‘‘A business owner owes its invitees a duty to keep

its premises in a reasonably safe condition. . . . In

addition, the possessor of land must warn an invitee

of dangers that the invitee could not reasonably be

expected to discover. . . . Nevertheless, [f]or [a] plaintiff to recover for the breach of a duty owed to [her]

as [a business] invitee, it [is] incumbent upon [her] to

allege and prove that the defendant either had actual

notice of the presence of the specific unsafe condition

which caused [her injury] or constructive notice of it.

. . . [T]he notice, whether actual or constructive, must

be notice of the very defect which occasioned the injury

and not merely of conditions naturally productive of

that defect even though subsequently in fact producing

it. . . . In the absence of allegations and proof of any

facts that would give rise to an enhanced duty . . . [a]

defendant is held to the duty of protecting its business

invitees from known, foreseeable dangers.’’2

(Citations

omitted; internal quotation marks omitted.) DiPietro v.

Farmington Sports Arena, LLC, 306 Conn. 107, 116–17,

49 A.3d 951 (2012). As this court recently explained, to

succeed in a traditional negligence action that is based

on premises liability, ‘‘the plaintiff must prove (1) the

existence of a defect, (2) that the defendant knew or

in the exercise of reasonable care should have known

about the defect and (3) that such defect had existed

for such a length of time that the [defendant] should,

in the exercise of reasonable care, have discovered it in

time to remedy it.’’ (Internal quotation marks omitted.)
Bisson v. Wal-Mart Stores, Inc., 184 Conn. App. 619,

628, 195 A.3d 707 (2018).

There exist at least two circumstances, however, in

which a plaintiff, as a business invitee, may recover in

a premises liability case without proof that the business

had actual or constructive notice of a dangerous condition alleged to have caused the plaintiff injury. In connection with the first exception, in Kelly v. Stop & Shop,

Inc., supra, 281 Conn. 768, our Supreme Court adopted

‘‘the so-called ‘mode of operation’ rule, a rule of premises liability pursuant to which a business invitee who

is injured by a dangerous condition on the premises

may recover without proof that the business had actual

or constructive notice of that condition if the business’

chosen mode of operation creates a foreseeable risk

that the condition regularly will occur and the business

fails to take reasonable measures to discover and

remove it.’’3

Id., 769–70. Under the mode of operation

rule, ‘‘a plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of

operation of the defendant’s business gives rise to a

foreseeable risk of injury to customers and that the

plaintiff’s injury was proximately caused by an accident

within the zone of risk. The defendant may rebut the

plaintiff’s evidence by producing evidence that it exercised reasonable care under the circumstances. Of

course, the finder of fact bears the ultimate responsibility of determining whether the defendant exercised

such care. We underscore, as most other courts have,

that the defendant’s burden in such cases is one of

production, and that the ultimate burden of persuasion

to prove negligence—in other words, that the defendant

failed to take reasonable steps to address a known

hazard—remains with the plaintiff.’’ (Internal quotation

marks omitted.) Id., 791–92.

On at least two occasions following our Supreme

Court’s decision in Kelly, our appellate courts have

clarified the parameters of the mode of operation rule.

First, shortly after Kelly, our Supreme Court refined its

adoption of the rule, stating that ‘‘the exception is meant

to be a narrow one . . . .’’ Fisher v. Big Y Foods, Inc.,

298 Conn. 414, 437, 3 A.3d 919 (2010). Specifically, in

Fisher, the court clarified that ‘‘the mode of operation

rule, as adopted in Connecticut, does not apply generally to all accidents caused by transitory hazards in selfservice retail establishments, but rather, only to those

accidents that result from particular hazards that occur

regularly, or are inherently foreseeable, due to some

specific method of operation employed on the premises.’’ Id., 423. Stated differently, ‘‘self-service merchandising itself’’ does not fall under the mode of operation

rule. Id., 424. The rule applies only to specific areas of

an establishment where the risk of injury is continuous

or foreseeably inherent by virtue of the nature of the

business or mode of operation. Id., 437. ‘‘Notably, [our

Supreme Court] included the requirement that a plain-
tiff’s injury occur within a ‘zone of risk.’ . . . If a ‘mode

of operation’ could be self-service merchandising itself,

then an entire store necessarily would be rendered a

‘zone of risk’ due to the readily established fact that

merchandise, as a general matter, sometimes falls and

breaks. Accordingly, the requirement of establishing

that an injury occurred within some ‘zone of risk’ essentially would be rendered superfluous.’’ (Citation omitted.) Id., 424.

Second, in Konesky v. Post Road Entertainment, 144

Conn. App. 128, 72 A.3d 1152, cert. denied, 310 Conn.

915, 76 A.3d 630 (2013), this court clarified that the

mode of operation rule requires not only an identifiable

zone of risk but also a business mode of operation that

is appreciably different from that of a similar business.

Id., 144. Applying these principles, in Konesky, this

court rejected the proposition that a plaintiff, who was

injured after she slipped and fell on a puddle of water

created from ‘‘ ‘beer tub[s]’ ’’ used by a nightclub to

serve chilled beer, could prevail under the mode of

operation rule. Id., 142–43. This court reasoned that the

defendant’s ‘‘service of beer’’ did not constitute ‘‘an

inherently hazardous mode of operation’’ because ‘‘the

entire [premises] would become a zone of risk simply

because drinks do sometimes spill or otherwise produce slippery surfaces.’’ (Internal quotation marks omitted.) Id., 143. The court explained that such an expansive zone of risk ‘‘would be inconsistent with the

Supreme Court’s admonition that the mode of operation

rule is meant to be a narrow exception to the notice

requirements under traditional premises liability law.’’

Id., 143–44.

As a result of those clarifications, this court has distilled three requirements for the mode of operation rule

to apply: ‘‘(1) the defendant must have a particular mode

of operation distinct from the ordinary operation of a

related business; (2) that mode of operation must create

a regularly occurring or inherently foreseeable hazard;

and (3) the injury must happen within a limited zone

of risk.’’ Porto v. Petco Animal Supplies Stores, Inc.,

167 Conn. App. 573, 581, 145 A.3d 283 (2016). We return

to these requirements subsequently in this opinion.

The second exception to the requirement in a premises liability case that a business invitee must prove

that the business had actual or constructive notice of a

dangerous condition alleged to have caused the plaintiff

injury is the affirmative act rule. ‘‘Under an affirmative

act theory of negligence, if the plaintiff alleges that the

defendant’s conduct created the unsafe condition [on

the premises], proof of notice is not necessary. . . .

That is because when a defendant itself has created a

hazardous condition, it safely may be inferred that [the

defendant] had knowledge thereof.’’ (Emphasis added;

internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, supra, 306 Conn. 122.
‘‘Rather than acting as an alternative to notice, the affirmative act rule allows an inference of notice when

circumstantial evidence shows that the defendant knew

or should have known of the dangerous condition

because it was a foreseeably hazardous one that the

defendant itself created.’’ Id., 124. Although closely

related, affirmative act cases involving injuries from

negligently displayed merchandise are principally distinguishable from mode of operation cases in that the

injury in an affirmative act case ‘‘is not triggered by an

intervening customer’s act.’’ Id., 122 n.10. ‘‘Analysis of

the affirmative act rule as it has been applied shows

that it permits the inference of actual notice only when

the defendant or its employees created an obviously

hazardous condition.’’ Id., 123; see, e.g., Tuite v. Stop &

Shop Cos., 45 Conn. App. 305, 308, 696 A.2d 363 (1997)

(slip and fall case in which employee left water in supermarket aisle after watering plants); Fuller v. First

National Supermarkets, Inc., 38 Conn. App. 299, 301–

303, 661 A.2d 110 (1995) (slip and fall case in which

employees left pricing stickers on floor).

At this juncture, we pause to observe the following

with regard to the liability theory on which the plaintiff

proceeded. First, our careful review of the record

reveals that at no time did the plaintiff explicitly state

before the trial court that she was seeking to establish

the defendant’s negligence on the basis of traditional

premises liability doctrine, the mode of operation rule,

or the affirmative act rule. During trial and in the plaintiff’s posttrial brief, the plaintiff focused almost exclusively on Meek v. Wal-Mart Stores, Inc., supra, 72 Conn.

App. 467, claiming that the Meek decision is ‘‘on all

fours’’ with the present case. Our Supreme Court

expressly has recognized Meek as a case applying the

mode of operation rule; see footnote 3 of this opinion;

see also Kelly v. Stop & Shop, Inc., supra, 281 Conn.

785 (‘‘[a]lthough the Appellate Court did not expressly

adopt the mode of operation rule in Meek, the analysis

and reasoning employed in that case is no different

from the analysis and reasoning that the court would

have used it if explicitly had adopted the mode of operation rule’’). Thus, by relying, essentially exclusively,

on this court’s decision in Meek, we conclude that the

plaintiff was proceeding under the mode of operation

rule. Second, the trial court did not explicitly state

whether it was finding in the plaintiff’s favor on the basis

of traditional premises liability principles, the mode of

operation rule, or the affirmative act rule, and the trial

court’s memorandum of decision similarly is limited to

a discussion of Meek. Here, too, in light of the trial

court’s exclusive reliance on Meek, we conclude that

the trial court was applying the mode of operation rule

in its liability finding against the defendant. Accordingly, we begin our analysis by considering the applicability of the mode of operation rule.4

Our review of the evidence presented at trial, viewed
in the light most favorable to the plaintiff, reveals that

the evidence did not support the application of the

mode of operation rule. We address each requirement

of the mode of operation rule with dispatch because,

notably, the plaintiff does not contend in her appellate

brief that the mode of operation rule was satisfied.

First, there was no evidence that the defendant

employed a particularized mode of operation with

respect to the stacking of the fans or the empty cardboard boxes (1) that was distinct from the ordinary

operation of a related business and (2) that either

resulted in a regularly occurring hazardous condition

or rendered some hazardous condition inherently foreseeable. See Konesky v. Post Road Entertainment,

supra, 144 Conn. App. 144. In addition, as stated previously in this opinion, ‘‘self-service merchandising

itself’’ cannot be a negligent mode of operation. Fisher

v. Big Y Foods, Inc., supra, 298 Conn. 424. Here, the

record simply does not demonstrate a specific method

of operation that is different from the general operation

of a similar business. See Porto v. Petco Animal Supplies Stores, Inc., supra, 167 Conn. App. 582 (concluding

that first requirement was not met where defendant

operated as any other pet store would by permitting

leashed animals into store). Second, ‘‘the store’s mode

of operation [must invite] careless customer interference, creating an expected, foreseeable hazard.’’ Id.

Here, the only evidence about the regularity of any

hazard came from Moore, who explained that he was

unaware of merchandise ever falling onto a customer.

Furthermore, even where there is a potential for hazard,

‘‘that potential alone does not give rise to a regularly

occurring or inherently foreseeable hazard.’’ Id., 583.

Third, the mode of operation rule applies only to ‘‘those

areas where risk of injury is continuous or foreseeably

inherent’’ as a result of the mode of operation at issue.

(Internal quotation marks omitted.) Fisher v. Big Y

Foods, Inc., supra, 437. In the present case, the record

is devoid of evidence that the plaintiff’s alleged injuries

occurred within a limited zone of risk.5 We also note

at this juncture that the photograph of the shelving

taken shortly after the incident, on which the trial court

relied as described previously in this opinion, does not

provide a sufficient evidential basis for any of these

requirements.

In short, there was simply no evidence as to what

caused the empty cardboard boxes to fall on the plaintiff

(i.e., whether they had been stacked improperly by an

employee of the defendant, whether the fans had been

negligently stacked or handled in a manner that caused

one or more of them to fall into the empty cardboard

boxes that in turn fell on the plaintiff, and/or whether

another customer had interfered with the placement of

any of the foregoing merchandise leading to the incident

at issue).6

In sum, the plaintiff failed to make out a prima facie
case of negligence under the mode of operation rule

and, as stated previously, she does not contend otherwise in her appellate brief. Instead, she asserts that

the judgment should be affirmed on the basis of the

affirmative act rule.7

Specifically, the plaintiff contends that there were

two affirmative acts that support the court’s conclusion:

(1) the stacking of the fan boxes in a precarious manner,

and (2) the defendant’s employees moving merchandise

in the adjacent aisle. The defendant argues that the

court did not actually find that any affirmative act on

the part of the defendant’s employees caused the boxes

to fall onto the plaintiff and that there was no evidence

to support such a finding in any event. We agree with

the defendant.

As an initial matter, we begin with the relevant language from the trial court’s decision: ‘‘Moore and

another employee of the defendant were stocking merchandise in the Internet coupon aisle when one of the

nine inch fan boxes on the top shelf of the Internet

coupon aisle toppled over and into the display boxes

on the top shelf of the stationery aisle, thereby causing

the display boxes to fall off the shelf and onto the

plaintiff.’’ A careful reading of the foregoing finding

reveals that the trial court did not in fact make a finding

that connects, other than temporally, the employees’

activity in the Internet coupon aisle to the fall of the

display boxes.

Even if such language could be construed, however,

to reflect a finding of an affirmative act on the part

of the defendant’s employees that caused the empty

cardboard boxes to fall on the plaintiff, the evidence

presented at trial, viewed in the light most favorable

to the plaintiff, was insufficient to support it. As stated

previously in this opinion, three witnesses testified.

Gordon, the sole eyewitness, testified that he saw two

boxes fall from the top shelf of the stationery aisle onto

the plaintiff, who was pushing a shopping carriage at

the time, not reaching for or touching any merchandise

on the shelving, and remained standing. With regard to

any activity taking place in the adjacent aisle, Gordon

testified that two male employees of the store had

passed him, and he heard them talking in the adjacent

aisle. He did not know why the boxes fell.

Moore, the store manager, testified that, on the day

of the incident, he was training another employee, Kevin

Reilly. Moore explained that he and Reilly were ‘‘[r]esetting’’ the Internet coupon aisle (i.e., the location in the

store where items advertised for sale through the

Internet are displayed).8 Moore unequivocally testified

that this ‘‘[r]esetting’’ activity did not involve merchandise on the top shelves; in Moore’s words, ‘‘we don’t

touch the top shelves.’’ He explained that the top shelf

of the Internet coupon aisle did not contain merchandise that was taken on and off because it was a main
aisle of the store and that it was used to display product

that looked more appealing than so-called ‘‘top stock,’’

meaning extra merchandise used to continuously refill

the aisles. Moore testified that he and Reilly were working in the Internet coupon aisle when they heard an

unidentified sound in the stationery aisle and went

around the corner, encountering the plaintiff and Gordon, who said that the boxes fell from the top shelf.

Moore further testified that the ‘‘home location’’ of the

empty cardboard boxes was the top shelf of the stationery aisle, which was approximately six and one-half

feet tall and intentionally accessible to customers interested in interacting with the merchandise for sale. He

could not explain how the boxes fell onto the plaintiff.

The plaintiff also testified in part as follows. Just

prior to her arrival at the stationery aisle, she passed the

Internet coupon aisle and saw two employees stocking

merchandise there. Once in the stationery aisle, the

plaintiff did not see the display boxes before they fell,

nor did she see any employee handling the display boxes

that fell. The plaintiff testified that the display boxes

‘‘flew off [the shelf] by themselves.’’

The evidence presented at trial, viewed in the light

most favorable to the plaintiff, was insufficient to establish that an affirmative act on the part of the defendant

caused the empty boxes to fall on the plaintiff. Moore’s

testimony that neither he nor Reilly ever touched the

top shelf of the Internet coupon aisle was not contradicted by any other evidence. Although the court reasonably could find that Moore and Reilly were resetting

the Internet coupon aisle at the time of the incident on

the basis of the plaintiff’s observations of two men

stocking shelves just prior to the incident, there was

no evidence to suggest that their specific actions in that

aisle disrupted the fan boxes on the top shelf. Finding

a negligent act on their part required the court to engage

in impermissible speculation. Although the court was

free to disbelieve Moore’s testimony regarding the

Internet coupon aisle’s top shelf, it was not permitted

to ‘‘draw a contrary inference on the basis of that disbelief.’’ Paige v. St. Andrew’s Roman Catholic Church

Corp., supra, 250 Conn. 18; see also Novak v. Anderson,

178 Conn. 506, 508, 423 A.2d 147 (1979). Therefore,

Moore’s uncontested statements that neither he nor

Reilly handled the fan boxes on the top shelf of the

aisle they were resetting—even if disbelieved—did not

allow the court to infer the opposite proposition, much

less infer that they negligently knocked over those

boxes into the display boxes, which ultimately struck

the plaintiff.9 Moreover, the photograph of the shelving

following the incident, on which the trial court relied

in finding the defendant negligent, is insufficient to permit an inference that the defendant’s employees

engaged in an affirmative act that led to the display

boxes falling on the plaintiff.
The judgment is reversed and the case is remanded

with direction to render judgment for the defendant.

In this opinion the other judges concurred.

* The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 Because we consider these claims to be analytically related, we address

them together.

2 The parties do not dispute that the plaintiff was a business invitee of

the defendant.

3 As part of its analysis, the court stated that ‘‘in Meek v. Wal-Mart Stores,

Inc., supra, 72 Conn. App. 476–79, the Appellate Court recently employed

a mode of operation analysis in the context of a claim arising out of the

alleged negligence of a large, self-service department store.’’ Kelly v. Stop &

Shop, Inc., supra, 281 Conn. 783.

4 We also note that, at the commencement of trial, the trial court suggested,

sua sponte, that the doctrine of res ipsa loquitur might apply. The trial

court’s decision does not address res ipsa loquitur, nor do the parties’

appellate briefs. Thus, we do not address it further.

5

In addition, the mode of operation rule, as it exists under Connecticut

law, presumes that there was some customer interference. See Kelly v.

Stop & Shop, Inc., supra, 281 Conn. 786–90; Konesky v. Post Road Entertainment, supra, 144 Conn. App. 141–42 n.11. Here, the plaintiff does not contend,

and there was no evidence presented to suggest, that another customer

interfered with the fans or empty cardboard boxes at all. Thus, the court’s

application of the mode of operation rule in this case was flawed for this

independent reason. See Konesky v. Post Road Entertainment, supra, 144.

6

Instead, Moore testified to the following. At some point immediately

prior to the incident, Moore and another store employee, Kevin Reilly, had

completed a safety walk, whereby they inspected the condition of various

aisles in the store and discovered no hazards of any sort. No concern had

ever been raised with respect to the display of the boxes that struck the

plaintiff. Moreover, the shelving did not easily move, and bumping into

the shelving in one aisle would not cause something to happen in the

adjacent aisle.

7 Although the plaintiff did not expressly rely on the affirmative act rule

at trial, we nonetheless exercise our discretion to consider the merits of

her argument, which we treat as an alternative ground for affirmance.

8 Moore explained that ‘‘[r]esetting’’ the Internet coupon aisle meant

removing merchandise from the shelves and replacing it with new merchandise.

9 Affirmative act cases from other jurisdictions involving circumstances

that are factually similar to the present case bolster our conclusion. The

Supreme Court of South Carolina considered whether the evidence was

sufficient to support the conclusion that the defendant store created a

dangerous condition when the plaintiff, shortly after removing two cans

from a shelf, was struck in the face by approximately fifteen falling cans.

See Garvin v. Bi-Lo, Inc., 343 S.C. 625, 627–28, 541 S.E.2d 831 (2001). The

court explained that the only evidence produced by the plaintiff related to

the cans’ selling price and reflected that the cans were stacked in their

original boxes and above the plaintiff’s height. Id., 628. That evidence was

insufficient as matter of law to establish that the defendant had created a

dangerous condition because nothing indicated that the goods were defectively stacked, or that the defendant knew of any such defect. Id., 628–29;

see also Vallot v. Logan’s Roadhouse, Inc., 567 Fed. Appx. 723, 726 (11th

Cir. 2014) (restaurant patron who slipped and fell on liquid could not prevail

in negligence action because evidence did not demonstrate that defendant

knew of liquid or caused spill). In Metts v. Wal-Mart Stores, Inc., 269 Ga.

App. 366, 367, 604 S.E.2d 235 (2004), the plaintiff was injured when a number

of boxes containing metal shelving units fell onto her from a display rack.

The plaintiff did not know what caused the boxes to fall, nor did she observe

any employees nearby. Id. The plaintiff produced no evidence with respect

to the boxes’ positioning prior to their fall. Id., 367–68. The court concluded

that the defendant had no knowledge of the hazard because the evidence

revealed that the boxes were stacked properly, and a safety inspection

approximately fifteen minutes prior to the accident revealed no defect. Id.,

367. Therefore, the court concluded that the defendant could not be held

liable on the basis of any affirmative act.