Appellate Division Rejects Expansion of Mode of Operation Rule

By: Donna Russo, Esq.


The Appellate Division, in a reported decision on January 26, 2016, Annette Troupe v. Burlington Coat Factory Warehouse Corporation, A-1687-14T4, rejected expansion of the mode of operation rule beyond self service facilities.

The Court, citing the Supreme Court’s decision in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015), explained: “To begin with, the mode-of-operation rule is a “special application of foreseeability principles” because of risks posed by self-service and “not a general rule of premises liability”.  The facts of Troupe are that the plaintiff slipped on a berry in the “Baby Depot” section of the store.  There wasn’t any fruit in the vicinity and no one was eating fruit.

The general rule of premise’s liability is that the plaintiff must prove actual or constructive notice of the dangerous condition.  In Troupe, the plaintiff argued that the mode of operation rule should be extended to apply to a store’s cleaning schedule because it was foreseeable that food items would be brought into the children’s department and dropped on the floor.  The store had an outside service that cleaned every morning before the store opened.   The Troupe Court completely rejected plaintiff’s arguments.  Since plaintiff could not prove actual or constructive notice, the summary judgment order from the trial court was affirmed.