By: Rey O. Villanueva and Francesca E. Cheli
In March of 2014, Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo published an article regarding the Appellate Division Opinion of Prioleau v. Kentrucky Fried Chicken, Inc., 434 N.J. Super. 558 (App. Div. 2013). In that case, the Appellate Division revisited and discussed the limited manner in which the “Mode-of-Operation Doctrine” should be applied. The Mode-of-Operation doctrine removes Plaintiff’s obligation to establish notice of an alleged hazardous condition in personal injury premises liability matters. For more background on the Appellate Division case, please see our prior article at the following link: http://grsl.com/the-application-of-the-mode-of-operation-doctrine.
The Prioleau matter was subsequently appealed to the New Jersey Supreme Court and, on September 28, 2015, in the unanimous and reported decision of Prioleau v. Kentucky Fried Chicken, Inc. (07-1-8005); the Judgment of the Appellate Division was affirmed and modified. The Supreme Court concluded that because the Trial Court’s erroneous Mode-of-Operation jury charge may well have determined the jury’s verdict, the Defendant is entitled to a new Trial on the issue of liability.
It has now been decided that by the New Jersey Supreme Court that in personal injury suits, the Mode-of-Operation charge should not be given to a jury, and constitutes reversible error when the location of the accident does not have any relationship to the self-service component of a Defendant’s business. This holding is significant as the Court has confirmed that instruction of an inference of negligence should not be applied broadly. Specifically, this charge should not be applied if the accident in question occurred outside a self-service area.
The New Jersey Supreme Court noted that when applied, the Mode-of-Operation Rule serves to relieve a Plaintiff from having to prove that a Defendant had actual or constructive notice of the condition that caused the accident. See, Bozza v. Vornado, Inc., 42 N.J. 355, 359-60 (1964). The Rule gives rise to an inference of negligence on the part of the Defendant. See, Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563-64 (2003). The Rule is applied when there is a self-service component to the business; i.e. where the business owner has chosen to permit the customer to serve themselves without the assistance of a business employee. A major underlying principle of the “Mode-of-Operation” Rule is the increased foreseeability of hazards in self-service areas. See, Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 565 (1966).
In the Prioleau case, Plaintiff was a business invitee who visited a Kentucky Fried Chicken (KFC) along with her family on a particularly rainy day. She stopped at the counter, told a family member her order, and headed toward the restroom. On her way she slipped and fell. At Trial, Plaintiff alleged that she fell either because Defendants did not exercise reasonable care to keep the floor dry on a rainy day, or because Defendants’ employees tracked oil and grease from the restaurant’s kitchen to the floor near the restroom.
At the jury charge conference, Plaintiff’s counsel argued that Plaintiff was entitled to a Mode-of-Operation charge because oil may have been tracked from the kitchen to the floor near the restroom. Over defense counsel’s objection, the Trial Court instructed the jury to consider the Mode-of-Operation Rule in rendering its decision. Specifically, the Court gave the jury both alternative model charges on the Mode-of-Operation Rule, “Notice Not Required When Mode of Operation Creates Danger,” and “Notice Not Required When Condition is Caused by Defendant.” The Court based its charge decision on the fact that there were only six tables in the restaurant, and because many people were walking in and out of the restaurant on a rainy night.
A verdict was returned in Plaintiff’s favor, and Defendants appealed. By a majority, the Appellate Division reversed and remanded the matter, finding that the Mode-of-Operation charge was improper in the circumstances of the case.
The matter came before the New Jersey Supreme Court as an Appeal as of right from a judgment in favor of Plaintiff pursuant to Rule 2:2-1(a)(2). The Supreme Court reviewed the Trial Court’s application of the Mode-of-Operation Rule, and decided that the application of the Rule constituted reversible error on the part of the Trial Court. The Supreme Court held that as a general matter, [appellate courts] will only reverse an erroneous jury instruction if it was capable of producing an unjust result or prejudiced substantial rights. See, Mandal v. Port Auth. Of N.Y. & N.J., 430 N.J.Super. 287, 296 (App. Div.)(Quoting Fisch v. Bellshot, 135 N.J. 374, 392 (1994). Here, the Supreme Court noted that this principle guided its view of the case and its decision to ultimately modify and affirm the judgment of the Appellate Division, and remand the matter back to the Trial Court. The Supreme Court noted, “it is undisputed that there was no evidence of actual or constructive notice in this case. Accordingly, the jury’s finding of negligence was either premised on the Mode-of-Operation charge, or on the rule…regarding dangerous conditions caused by the Defendant or its employees.”
As set forth in our previous article on this case, the importance of limiting the application of the Mode-of-Operation doctrine when defending personal injury premises liability claims cannot be understated. The ruling by the New Jersey Supreme Court in Prioleau is extremely important for business owners engaged in the self-service industry, as well as their insurance carriers, because it further clarifies and narrows the scope of potential liability and exposure to these entities. Now, when an accident occurs in a New Jersey establishment that has a self-service component, the Mode-of-Operation Doctrine will no longer automatically be applied if the accident occurs outside of the self-service area of the business.
 Rey O. Villanueva, Esq. is a Shareholder in GRSLB&G’s Litigation Department. He defends a wide variety of clients in various civil actions brought forth in New Jersey and New York State and Federal Courts. Rey can be reached at firstname.lastname@example.org.
 Francesca E. Cheli, Esq. is an Associate in GRSLB&G’s Litigation Department. She defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Francesca can be reached at email@example.com