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Paul C. Jensen, Jr., Esquire was quoted in the New Jersey Law Journal. In Lawyers Divided on Impact of Mode-of-Operation Ruling, Michael Booth examines the impact of the New Jersey Supreme Court’s recent decision in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015), which limited application of the “mode-of-operation” doctrine in slip-and-fall cases.
Under New Jersey law, it is well settled that a business owes its patrons a duty of reasonable care to provide a safe environment. See Selluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 446 (App. Div. 2009). This duty requires businesses “to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe” to patrons. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (citing O’Shea v. K. Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997)). To establish that a business breached this duty, a slip-and-fall plaintiff normally must show that the business had “actual or constructive knowledge” of the dangerous condition. Id. at 563-64. However, New Jersey courts will “relieve the plaintiff of proof of that element in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.” Id. “In those circumstances,” the court will “accord[ ] the plaintiff an inference of negligence, imposing on the defendant the obligation to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.” Id. at 564. This inference is known as “mode of operations” liability because the plaintiff must produce sufficient evidence that the dangerous condition arose because of business’s mode of operation.
New Jersey courts have applied mode-of-operations liability to areas where an employee’s or customer’s handling of goods created the dangerous condition, such as self-service areas. For example, in the seminal case of Wollerman v. Grand Union Stores, Inc., the plaintiff slipped and fell on a green bean. 47 N.J. 426, 428 (1966). However, courts following Wollerman had expanded the doctrine to include slipping on spilled drinks in common areas of a business. See Ryder v. Ocean County Mall, 340 N.J. Super. 504, 508 (App. Div. 2001); Lebrio v. Pier Shops at Ceasar’s, Docket No. A-0268-13T2, 2014 N.J. Super. Unpub. LEXIS 2319, at *2 (App. Div. Sept. 25, 2014).
In Prioleau, it was raining heavily and the plaintiff tracked water into a Kentucky Fried Chicken restaurant she entered. As she proceeded directly to the restroom, the plaintiff slipped and fell on the floor, which she described as covered with “grease mixed with water.” After the trial judge instructed the jury on mode-of-operations liability, the jury returned a verdict in favor of the plaintiff. However, the Supreme Court affirmed the Appellate Division’s reversal, finding that “[t]he theory offered by plaintiff to justify the mode-of-operation charge, that oil and grease are used in cooking at the restaurant and that managers regularly examined the floor, establishes no nexus to customer self-service or related business operations.”
The court’s decision in Prioleau is not inconsistent with prior cases which had held that mode-of-operation liability is not triggered where the nexus between the method or manner in which the business is operated and the alleged harm is “extremely attenuated.” See Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 246 (App. Div. 2013) (declining to apply mode-of-operation rule to claim of plaintiff injured on public sidewalk by tripping on used phone card against store that may have sold card). However, the decision certainly narrows future application of this doctrine. It is clearer than ever that mode-of-operations liability is “a special application of foreseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a customer self-service business model.” Prioleau, 223 N.J. at 262.
The limits of what constitutes a “self-service business model” will be tested in the coming months and years. However, we will continue to fight for justice for those injured where a business that fail to uphold their duty to make their premises safe for patrons. If you were involved in a slip-and-fall in New Jersey or Pennsylvania, contact a Cherry Hill personal injury lawyer at Folkman Law, at 856-354-9444.