Personal Injury: New “Mode Of Operation” Opinion

By: Donna Russo, Esq.

On April 1, 2016, the Appellate Division issued a new reported opinion further refining the “mode of operation” jury charge.  Walker v. Costco Wholesale Warehouse, et. als, A-2493-14T2.

The mode of operation charge is only applicable in slip and fall cases when plaintiff establishes that the store created a hazardous condition by its mode of operation such as ‘self-service retail activities’.  The significance of this charge is that the plaintiff does not have to establish that the proprietor had actual or constructive notice of the dangerous condition.  However, the mode of operation charge does not create a strict liability case and the defense still has the opportunity to establish that the maintenance activities to inspect and clean debris were reasonable under the circumstances.

In Walker, plaintiff was a customer at Costco.  He slipped and fell on awhile substance that appeared like a yogurt based product.  His jogging pants were wet and smeared from the substance but he couldn’t tell the jury exactly what it was.  The store had a cheesecake stand and was giving free bite sized samples in a small paper cup not in the exact location of the fall but in the vicinity of the fall.  Plaintiff was in the fish and frozen goods aisle.  The manager observed no liquid on the floor while he was helping the plaintiff.  Plaintiff’s acquaintance testified that another unidentified employee had stated that he had cleaned up the area after the plaintiff’s fall.  The statement was admissible as a hearsay exception that permits employee statements made during the existence of the employment relationship.  None of the employees who testified saw anything on the floor.  The store had no restrictions on customers walking around the store with samples they may take from the display stands.

The Court found that there was a plausible basis, to believe that the white substance could have been cheesecake, which may well have become softer, creamier, and more yogurt-like in appearance after being displayed in sample cups for some unspecified time at room temperature.  The Court further found that plaintiff’s inability to describe the substance is more exact terms is understandable given the sudden and traumatic nature of his fall.

The Court held that the trial court’s rejection of the mode-of-operation charge was prejudicial error entitling plaintiff to a new trial.  The Court held that the trial court on retrial shall include with the model charge a specific instruction advising the jurors that they cannot hold Costco liable under a mode-of-operation theory unless they find that plaintiff had persuaded them by the preponderance of the evidence that he slipped on a substance that came from the stand with free samples. [“…case law requires that a plaintiff demonstrate a reasonable nexus between the store’s self-service activity and the dangerous condition allegedly producing his or her injury.” citing Troupe v. Burlington Coat Factory, 443 N.J. Super. 596, 603-04 (App. Div. 2013)]