Sandra Konesky v. Post Road Entertainment et al.: The state Appellate Court has overturned a jury verdict of $292,500 for a woman who fell and broke her foot inside a bar after slipping on the wet floor. If efforts to get the state Supreme Court to hear the case are unsuccessful, there will be a second trial, according to lawyers.
Sandra Konesky, along with her husband Stanley Konesky, attended the Walter Camp Football Foundation at Hula Hank's Island Bar, a nightclub in New Haven, on the evening of January 11, 2008.
Sandra Konesky's husband was a former president of the foundation, which each year honors top college football players. The players spend a long weekend in Connecticut, taking part in such activities as visiting children's hospitals and attending a black-tie event.
This event, for the players, foundation members and the public, filled Hula Hank's to its 650-person capacity. As such, the nightclub supplemented its three standard bars with several makeshift "beer tubs," at which a woman standing by a large bucket filled with ice and beer bottles would hand a patron a beer and collect the money.
One of the beer tubs was stationed right near the booth where the Koneskys were sitting inside Hula Hank's. When Sandra Konesky got up to go to the restroom, she slipped and fell near the beer tub station.
After falling, she noted that her pants and the floor were wet. She felt intense pain in her shoulder and foot and could not get up off of the floor without assistance. An ambulance was called and she was taken to Yale-New Haven Hospital, where she was diagnosed with a fracture in both her shoulder and foot.
The foot injury was the more serious break of the two fractures. The injury required surgery and Konesky was told by doctors to stay off of the foot for eight to 12 weeks.
Konesky, represented by John J. Kennedy Jr., of Kennedy, Johnson, Schwab, & Roberge in New Haven, filed a lawsuit against the nightclub for negligence in part, because of the way the bar set up the ice-filled beer stations causing too much water to fall onto the ground.
A jury sided with Konesky and awarded her $292,500 for her injuries, which included a reduction of 10 percent for her own comparative negligence. With interest, the verdict exceeded $350,000.
The nightclub appealed the jury's verdict on grounds that the trial court inappropriately applied the mode of operation rule. This rule holds that when a business uses a self-service type operation, the plaintiff does not have to show the business owner had prior notice of hazardous conditions, which is usually a key aspect of fall-down cases. The mode of operation rule previously stemmed from a fall-down case, Fisher v. Big Y Foods Inc., at a self-service salad bar in a Connecticut supermarket.
The lawyer handling the appeal for the bar, Jan C. Trendowski, of Trendowski & Allen in Centerbrook, said the logic behind the mode of operation rule is that in instances where people are essentially being asked to serve themselves, the premises owner has to be more alert to possible dangers.
"The rationale is that where a seller employs a self-service operation to save money, they must maintain a high level of supervision to guard against people dropping and spilling things," said Trendowski.
However, he continued: "The rule does not apply in situations where the mode of operation of the business requires a particular method. For example, movie theaters are necessarily dark so people can see the movie. You can't claim that insufficient lighting caused you to fall, as darkness is a part of the business."
Or, in this case, Trendowski argued that you can't serve beverages without having some liquid present. The state Appellate Court judges saw things Trendowski's way, reversed the jury verdict and sent the case back for a new trial.
Appellate Judge Robert E. Beach Jr., penning the opinion, ruled that the service of cold beer is a necessary aspect of running a nightclub. Serving beverages necessarily results in wet surfaces. Further, if the service of cold beers is deemed to be inherently dangerous, then the entire bar becomes a "zone of risk" on an ongoing basis, unlike a piece of lettuce falling to the ground near a salad bar in a store.
"If the mode of operation rule could be satisfied by bar patrons carrying wet glasses, there would be no effective limitation on the application of the rule," wrote Beach.
Kennedy, the plaintiff's lawyer, who was assisted by Ed Walsh and Jennifer Antognini-O'Neill, declined comment on the case other than to say they planned to file a petition asking the state Supreme Court to take a look at the ruling.
"Some year or so prior, I had defended another fall down at Hula Hanks where the judge also allowed the mode of operation theory," Trendowski recalled. "In that case, the judge held that in any instance where a patron buys a beer at the bar, it is technically self-service, as the patron is going to get the beer themselves rather than having it served to the table. The jury found for the defendant, but judges increasingly allowed the mode of operation against bars. Hopefully, this decision will put a stop to it."•