Personal Injury: Update on Mode of Operation Rule

By: Donna Russo, Esq.

On September 28, 2015, the N.J. Supreme Court affirmed the Appellate Division’s opinion in Prioleau v. Kentucky Fried Chicken, Inc. (A-99-13) (074040). As reported in an earlier article, the Appellate Division held that the mode of operation rule does not apply in a situation where a plaintiff fell by the restrooms while her family was ordering her dinner at the counter. It was a rainy evening. The plaintiff contended that she fell on a liquid substance that was greasy. The restaurant had admitted that sometimes grease is tracked by employees in the area of the rest rooms. The Supreme Court remanded the case on the issue of whether plaintiff proved that the restaurant’s employee tracked grease. However, the Court held that the mode of operation rule is inapplicable.

The Court ruled that the mode of operation rule, which excuses a plaintiff from proving that a defendant had notice of a dangerous condition, only applies in self service businesses where the customer serves himself or herself or is otherwise directly engaged with products or services, unsupervised by an employee.

The Supreme Court set forth the following principles:

1. The mode of operation doctrine has never been expanded beyond the self service setting, in which customers independently handle merchandise without the assistance of employees or may come in direct contact with product displays, shelving, packaging and other aspects of the facility that may present risk;

2. The rule applies only to accidents occurring in areas affected by the business’ self-service operations, which may extend beyond the produce aisle of supermarkets and other facilities traditionally associated with self-service activities;

3. The dispositive factor is not the label given to a particular location, but whether there is a nexus between self-service components of the defendant’s business and a risk of injury in the area where the accident occurred;

4. If the mode of operation rule applies, it affects the parties’ burdens of proof in two respects. The rule relieves the plaintiff of the burden of proving actual or constructive notice of a dangerous condition. It also gives rise ‘to an inference of negligence, shifting the burden of production to the defendant, who may avoid liability if it shows that it did ‘all that a reasonably prudent man would do in the light of the risk of injury [the] operation entailed.’