Premises Liability And Mode Of Operation

By: Donna Russo, Esq.

Generally, Plaintiff is required to prove the following in premises liability cases: (1) the defendant has the duty to provide care; (2) the defendant breached this duty; (3) the defendant had actual or constructive notice of dangerous condition; (4) defendant’s negligence was the cause of the accident; and (5) damages.

Notice is sometimes difficult to prove. The negligent condition must exist on the premises and the defendant knew same or has had sufficient time that the defendant should have discovered the negligent condition. An exception to this notice requirement has been developed over the years when the defendant’s mode of operation is the cause of the condition.

Mode of operation is an exception to proof of actual or construction notice; The mode of operation is very specific and most negligence cases will not fall within this exception. The mode of operation doctrine states that when a proprietor creates a dangerous condition then notice, whether actual or constructive, of the dangerous condition is not required to be proved by the plaintiff.

The case of Wollerman v. Grand Union Store, 46 N.J.426 (1966) was the first time the phrase “mode of operation” was used. In Wollerman, the plaintiff slipped on a loose string bean on the grocery store floor. The store permitted customers to select the beans from open bins. The N.J. Supreme Court found that there is a sufficient probability “to permit such an inference in the absence of evidence that [the] defendant did all that a reasonably prudent man [or woman] would do in the light of the risk of injury his operation entailed” because “greens…sold from open bins on a self-service basis, creates the likelihood that some will fall or be dropped to the floor.” Id. 429. The Court further held that it does not matter if the risk arises from the act of an employee or a customer on the premises.

The N.J. Supreme Court also reviewed the mode of operation doctrine in Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2002). In this case, the plaintiff had slipped and fallen on a grape near the checkout aisle rather than in the produce aisle. The Court held that because of the way the grapes were packaged, the grapes could have easily upended in the shopping cart in any part of the store. “A mode-of-operation charge is appropriate when loose items that are reasonably likely to fall to the ground during a customer or employee handling would create a dangerous condition.” Id. 565.

Three Appellate Division cases also address the mode of operation doctrine. In Craggan v. IKEA U.S., 332 N.J.. Super 53 (App. Div. 2000), the Court held that a delivery driver in the loading area who became entangled on discarded string that was provided to customers leaving the store was entitled to the mode of operation charge: “IKEA’s mode of operation to facilitate self-service removal of purchase items created a reasonable probability that the string would not be properly coiled in the container after each use, would accumulate in the loading area, and create a tripping hazard for anyone in the area.” Id. 63. In Znoski v. Shop-Rite Supermarkets, Inc., 122 N.J. Super. 243 (App. Div. 1973) the Court rejected the mode of operation doctrine when the plaintiff was injured by a shopper failing to control the metal shopping cart. The Court stated: “We are unable to say that a substantial risk of injury is implicit, or inherent, in the furnishing of shopping carts to patrons by a store proprietor.” In Ryder v. Ocean Cnty. Mall, 340 N.J. Super. 504 (App. Div.), cert. denied, 170 N.J. 88 (2001), the court applied the mode of operation doctrine when a plaintiff was injured and slipped on a spilled drink outside the food court while shopping. The Court found that the Mall became a self service cafeteria and stated: “The Mall, therefore, can reasonably be charged with notice that food and drink spills are likely to occur and do occur anywhere and at any time in the common area.” Id. 509.

On March 3, 2014, the Supreme Court rendered its opinion in Janice J. Prioleau v. Kentucky Fried Chicken, Inc. and KFC Corporation, and Yum Brands, Inc. and Yum Brands, Inc. and KFC U.S.. Properties, Inc., Docket A-2884-12T4. In this case, plaintiff went to KFC on a rainy day. She admits that rain water was tracked into the store by her and her family. She went directly to the ladies’ room and began to slip and slide like she was on ice. Her family members came over and also slipped. Management examined the floor and did not see any water, grease or other substance on the floor. Plaintiff argued that the kitchen help worked with grease and they could have tracked grease into the area because they used the same bathroom. The trial judge gave a mode of operation charge to the jury. The N.J. Supreme Court reversed the trial judge’s instruction and ruled that the mode of operation charge is not appropriate under the facts of this case. The Court held that “Mode-of-operation liability does not apply merely because defendants operated a fast food restaurant. Rather, plaintiff must establish a causal connection between the fast floor or other business operation and the harm causing her injuries.”