Mode of Operation
A while back I blogged about “mode of operation,” the legal doctrine used in negligence cases, primarily slip and falls, against businesses whose “method of doing business create an inherent risk of injury” to its patrons. Put another way, there are some businesses who, by the very nature of the way they are set up, are more apt to cause or contribute to the cause of an accident.
Traditionally in premises liability cases, a plaintiff must prove a defendant business had actual or constructive notice of a dangerous condition. Generally a plaintiff must show that the business knew (notice) of the condition, and thereafter acted negligently, in either fail do anything to correct the condition, or by doing to make the condition worse.
Because some businesses are such that the mode in which they operate is more susceptible to accidents, the mode of operation serves as an exception to the traditional rules when it comes to having to prove notice. Now, I am in no way sating a grocery store produce aisle is, in the traditional sense, more dangerous than a construction site. I am merely suggesting, and the law provides, that when businesses derive a benefit (money) from the customers it invites in it stores, and permits them to hand pick fruit, vegetables, etc … and stuff these products fall to the floor, along with the ice and water usually keeping these items fresh …. Then it is not necessary for the plaintiff to prove a particular broccoli leaf, or carrot spear was the culprit. The next time you are in a grocery store, look at where they place their mats (if any). You will see them in the frozen foods, produce, etc. you will most likely NOT see them in the Hallmark card section, right?
The mode of operation line of cases (not cited here) are most typically associated with self-service grocery stores, for example, where plaintiff slips on a grape, or string bean, or ice chip, that falls from a self-service bin. They can also be associated with injuries caused by the actual self-service itself, as when a customer is injured pulling a large or awkward product off a high shelf at a Home Depot or Lowes. In 2001, our courts extended this doctrine to include common areas of a shopping malls, where someone is injured in an area where patrons were permitted to carry food and drink. (Ryder v. Ocean County Mall).
The doctrine was again recently considered by our Appellate Court in Lebrio v. The Pier Shops at Caesar’s. In Lebrio, plaintiff suffered injuries after a fall in the common area of the Pier Shops at Caesar’s in Atlantic City.
She had been walking in a common area on the second level of The Pier Shops when she slipped on a clear liquid and fell. After falling she observed a cup and lid on the ground along with an area of (clear) wetness. She brought a negligence claim against the store owners and janitorial company.
After all discovery, defendants moved for summary judgment, claiming plaintiff failed to present any evidence that defendant had either actual or constructive notice of the spill, a pre-requisite to a premises liability case. This motion was denied, and the matter tried to a jury. At the close of the evidence the judge permitted the mode of operation (jury charge) against the defendant-owners. The jury ultimately returned a substantial plaintiff’s verdict and defendants appealed.
On appeal, the Court found not error in this regard. The decision is attached. In it the Appellate court gives a concise summary of New Jersey Premise liability, including: a business owner owes to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation and that a plaintiff bears the burden of proving that the premises owners breached that duty. (citations omitted).
The court then discusses the notice requirement, including: Owners of premises generally are not liable for injuries caused by defects for which they had no actual or constructive notice and no reasonable opportunity to discover; and ordinarily an injured plaintiff must prove the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. (citations omitted).
The court next discusses the genesis of the mode of operation exception to the notice requirement, for cases “when the shopkeeper, through acts of its agents or patrons, creates a dangerous condition.” In these cases, as the trial court found in Lebrio, the plaintiff is relieved of showing actual or constructive notice of the dangerous condition and is entitled to an inference of negligence. This in turn shifts the burden of production to the defendant, who can only avoid liability if it shows it acted reasonably under the conditions.
The court confirmed that not all premises liability cases warrant the mode of operation charge. “To trigger mode-of-operation liability, a plaintiff must identify facts showing a nexus between the method or manner in which the business is operated when extending products or services to the public, and the harm alleged to have caused the plaintiff’s injury.” (citations omitted)
Finally, the court confirmed that the doctrine does not automatically apply merely because a defendant operates a specific type of business. Rather, “the unifying factor in reported opinions is the negligence results from the business’s method of operation, which is designed to allow patrons to directly handle merchandise or products without intervention from business employees, and entails an expectation of customer carelessness.”
Stark & Stark has been successfully representing clients in slip and falls like the ones mentioned above for many years. If you or a loved one has been injured, contact us today for your free consultation.
