Under the mode-of-operation theory, "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," pursuant to Kelly v. Stop and Shop, a 2007 decision of the Connecticut Supreme Court. On May 28, 2010, the plaintiff, Judith Mason, shopped at a Wal-Mart in Waterford, Conn. and allegedly slipped and fell on water near the checkout area. Video surveillance established that the water, which dripped out from a hole in a bag of mulch purchased by another customer, fell on the floor at 8:33 p.m. and that the plaintiff slipped and fell at 8:34 p.m. Allegedly, the plaintiff tore a rotator cuff and required surgery. The plaintiff sued Wal-Mart, alleging it was negligent. The court found that the plaintiff, a business invitee, failed to prove Wal-Mart created the hazardous condition or knew about the unsafe condition, prior to the plaintiff's slip and fall. "It would be unreasonable," wrote the court, "to find that the defendant had constructive notice of a hazardous condition that had been in evidence for but one minute." Also, the high-traffic nature of the checkout area, in and of itself, did not make the checkout area a zone of risk, for purposes of the mode-of-operation theory of negligence. The mode-of-operation theory only applies to foreseeable injuries that occur within an identifiable zone of risk. The plaintiff's theory would make every store checkout area a zone of risk. The plaintiff did not prove her mode-of-operation claim, and the court granted judgment to the defendant.

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