Anyone familiar with New Jersey's premises liability law is also familiar with the mode-of-operation liability principles applied to cases where a dangerous condition of the property has been shown to arise from the defendant's decision to provide goods to customers through self-service methods.  For example, when greens are sold from open bins on a self-service basis, there is a likelihood that some will fall to the floor.  If the defendant operator chooses to sell this way, he must do what is reasonably necessary to protect the customer from the risk of injury this mode of operation is likely to generate.  Where the principle applies, the plaintiff is relieved from the burden of having to prove the usual element of actual or constructive notice of a hazard which is otherwise necessary for an ordinary claim of negligence.  Of course, the patron still must demonstrate a reasonable nexus between the store's self-service activity and the dangerous condition that allegedly produced the injury.  The following is a survey of recent cases in which the courts examined how these principles might be applied in varying circumstances.

In Prioleau v. Kentucky Fried Chicken, Inc.,223 N.J. 245 (Sept. 28, 2015), the New Jersey Supreme Court looked at whether or not mode-of-operation principles applied in the context of a fast food restaurant.  In that case, the plaintiff went with her family to a KFC.  She testified that there was a torrential rainstorm, and that after telling her family at the food counter what she wanted to eat, she walked to the bathroom.  On her way there, she slipped and fell.  She described the floor as greasy and wet and as if she "was on ice."  The plaintiff argued that she was entitled to the mode-of-operation charge at trial because the staff may have dragged grease from the kitchen to the area of the fall.  The trial court agreed and gave both mode-of-operation charges in sequence as well as the "notice not required" charge, which permits a claimant to recover without showing the defendant had notice of the condition if the defendant created the condition.  The jury found the defendant negligent; the defendant appealed.  The Supreme Court held that the defendant was entitled to a new trial.  The court reiterated that the mode-of-operation charge only applies in situations where the customer foreseeably serves himself or otherwise engages with products or services unsupervised by an employee.  The court found that it was error to charge the jury on mode-of-operation and that the erroneous charge may well have determined the outcome.

In another recent case, the Appellate Division applied mode-of-operation principles to hold that the defendant was entitled to summary judgment on liability.  In Troupe v. Burlington Coat Factory Warehouse, Corp., 443 N.J. Super. 596 (App. Div. Jan. 26, 2016), the plaintiff entered the defendant's store and proceeded to "Baby Depot," which was a specific area located in the back of the store.  As she walked, her right foot slipped on an unnoticed berry in the aisle.  Investigation revealed that there was no other fruit in the vicinity and that there was no one eating fruit.  The plaintiff's expert opined that because the defendant sold baby and children's clothing, it should have foreseen that babies and children would be in the store doing things they normally do, including eating snacks, drinking drinks, and dropping things on the floor.  The trial court granted summary judgment to the defendant finding it had no actual or constructive notice of the condition and that the mode-of-operation rule did not apply because "the berry wasn't anything they were selling."  The plaintiff appealed and urged the Appellate Court to expand the mode-of-operation rule to include circumstances where the store's cleaning schedule was inadequate to deal with the foreseeable risk that children would bring food into the store and drop it on the floor.  The Appellate Division declined to do so.  It reasoned that the plaintiff's argument for expansion misconstrued the rule in a manner that was inconsistent with prior case law, including Prioleau (referenced above).  The accident did not involve a self-service component of the defendant's business (i.e., selling clothing from racks) and the risk of a customer slipping on a berry in the aisle.

On the other hand, the Appellate Division recently held it was an error for the trial court not to charge the jury on mode-of-operation.  In Walker v. Costco Wholesale Warehouse, 2016 N.J. Super. LEXIS 48 (App. Div. Apr. 1, 2016), the plaintiff was shopping with an acquaintance at a warehouse store around 6:00 p.m. on a Friday evening.  The plaintiff left his shopping cart with his friend and proceeded to an area in the store to look for packages of bacon.  On his way, he passed a vendor providing free samples of what appeared to be cheesecake.  The plaintiff did not stop at the vendor and passed by without taking a sample.  As he turned a corner, the plaintiff slipped on a substance on the floor which he indicated had a white appearance, like a yogurt-based product.  Testimony in the case showed that it was a routine practice of the store to allow vendors to pass out free food samples throughout the course of the shopping day.  At trial, the judge refused to give the mode-of-operation charge, which the plaintiff requested, in part because the judge noted the plaintiff was unsure of exactly what he slipped on.  Though the store permitted customers to walk around with food and drink, the trial judge could recall no testimony that would identify the free items being provided that day and the substance on which the plaintiff fell.

Once again, relying on the principles enunciated and reiterated in  Prioleau, supra, the Appellate Court found that the trial court committed reversible error when it refused to charge the jury on mode-of-operation.  The Appellate Court supported its finding by referring to prior decisions, holding the mode-of-operation rule applicable in cases where a proprietor operated a cafeteria within the retail establishment, allowing patrons to carry food and drink freely within the confines of the premises.  Similarly, the courts found the rule applicable to situations where patrons of cafeteria-style restaurants were allowed to carry food and drink from the counter where it was ordered.  The Appellate Division also referred to cases which held the rule applicable to shopping mall food courts.  The Walker court likened the vendor samples in this matter to those situations and said that there was a reasonable factual basis to support a nexus between the vendors' activities and the substance on the floor to warrant the charge.

What It Means to You

The lesson to be learned from these recent decisions is that the New Jersey courts will strictly adhere to the priciple that the mode-of-operation is to be charged in cases involving the self-service aspecs of a proprietor's business.  But the courts will look keenly at the facts of the case in determining whether or not those self-service features are connected to the hazard when determining whether to implement the jury charge at trial.

For more on the mode-of-operation rule and how it is applied in New Jersey premises cases, contact Richard C. Bryan or James J. Green, attorneys-at-law for Cipriani & Werner.