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ALERT:Limiting the Expansion of the ‘Mode of Operation Doctrine’

December 14, 2015

The New Jersey Supreme Court has recently struck down an expansion of the ‘mode of operation doctrine’. The mode of operation doctrine, codified in Model Civil Jury Charges 5.20F, ultimately eliminates the need for an injured customer to prove notice of an unsafe condition where the manner in which a business operates creates the hazard. The mode of operation doctrine is used in premise liability cases, which reduces the plaintiff’s burden of proving defendants’ actual and constructive notice of the hazardous condition. Hence, the element of notice is assumed rather than proven to the jury.

Historically, in a 1966 Supreme Court case, this doctrine was the basis for the ruling in Wollerman v. Grand Union Stores, 47 N.J. 426; 221 A 2d 513 (1966).  In Wollerman, the plaintiff slipped on a loose string bean in a grocery store, which allowed customers to select produce from open bins.  In Prioleau v. Kentucky Fried Chicken, decided on September 28, 2015, the New Jersey Supreme Court affirmed an Appellate Division ruling that overturned a $138,643 damages award. The damages were awarded to a woman who slipped and fell on a wet floor while on her way to the restroom at a Kentucky Fried Chicken outlet. The plaintiff, Janice Prioleau, alleged that she fell because grease was tracked by the employees using the deep fat fryers in the kitchen on a rainy day. Justice Anne Patterson, writing for the court in Prioleau, affirmed the Appellate Division’s ruling that Essex County Superior Judge Sebastian Lombardi erred by giving the jury the mode of operation charge.

Justice Patterson explained, “This rule has only been applied to settings such as self-service or a similar component of the defendant’s business, in which it is reasonably foreseeable that customers will interact directly with products or services, unassisted by the defendant or its employees.”

Additionally Justice Patterson stated, “The trial record establishes that plaintiff’s injuries were unrelated to any of defendant’s business in which a customer foreseeably serves himself or herself, or otherwise engages with products or services, unsupervised by an employee,” further “the accident was unrelated to any self-service component of defendant’s business.”

Winter v. Old Orchard Country Club, decided on October 13, 2015, had a different result. In this case, the court refused to disturb the damages awarded to an octogenarian and his wife after he was injured in the parking lot of his country club. In Winters, the plaintiff stepped on a chunk of concrete set in the ground, lost his balance and tripped over a low-hanging rope in the club’s parking lot and sustained severe injuries. The defense alleged that the hanging ropes were used to control the area where the golf carts could be driven.  The judge gave the jury the mode of operation charge.  The jury found the club to be 70 percent negligent and Winter to be 30 percent negligent.

The Appellate Court held that because defense counsel did not object to the mode of operation portion of the charge, the court applied the plain error rule.  The court actually agreed that, based on Prioleau, it was error to give the mode of operation charge.  The Winters court held that the court in Prioleau clarified that the mode of operation charge is only appropriate in a narrow set of circumstances involving customer self-service, a situation not presented here.  However, the error was not clearly capable of providing an unjust result.  Justices Reisner and Whipple explained “There was no plain error as to the jury charge” and “…reasonable jurors could have concluded that the club’s chosen mode of directing golf cart traffic, by using ropes strung across the paths, created a dangerous condition for pedestrians.”

In conclusion, the court in Prioleau has limited the mode of operation doctrine to customer self-service situations.  The court in Winter agreed but did not reverse on grounds of plain error.

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