The New Jersey Appellate Division recently limited the applicability of the “mode of operation” doctrine. This doctrine relieves a Plaintiff from having to prove that a Defendant had actual or constructive notice of a dangerous condition. It creates an inference of negligence and shifts the burden to Defendant to that it exercised due care. The doctrine is based upon the holdings in Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966), and Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003). Nisivoccia states that the mode of operation doctrine applies when the nature of the Defendant’s business creates the hazard while Wollerman states that, if the doctrine applies, the Defendant must show that it did all that it could to reduce the risk of injury.
In Arroyo v. Durling Realty, Docket No. A-0967-12T3 Plaintiff Jacquelin Arroyo (“Plaintiff”), brought a personal injury lawsuit against Defendant Durling Realty, LLC (“Durling”) for injuries sustained on June 29, 2008. On that date, Plaintiff went to a Quick Chek convenience store in Wantage, New Jersey. This store was owned by Durling. Plaintiff purchased some items and then left the store. After she left the store, Plaintiff slipped on a discarded telephone calling card and fell, injuring her knee.
Plaintiff alleged that the presence of the calling card on the sidewalk created an unreasonably dangerous condition. In support, Plaintiff showed that the phone cards were displayed on racks near the cash register and the exit. Plaintiff argued that Durling should have foreseen that telephone cards would be immediately used and then discarded on the sidewalk. Durling’s store manager testified that the front of the store was swept for debris 10 to 15 times per day. The front sidewalk and parking lot were swept twice per day. The area was cleaned after every shift change. The area was vacuumed every two to three days.
Durling moved for summary judgment which the trial Court granted. In its ruling the trial Court stated that Plaintiff failed to present evidence that the telephone card was present for an unreasonable amount of time. The trial Court refused to extend the mode of operation doctrine to cover this situation. Plaintiff appealed.
The Appellate Division affirmed the trial Court. The Court noted that there was no genuine issue as to whether Durling had actual or constructive notice of the presence of the discarded telephone card prior to Plaintiff’s fall. Further, there was no evidence contradicting the testimony of the store manager regarding the routine maintenance.
… the Court ruled that how the purchaser used or disposed of the card after leaving the store was not an integral feature …
With respect to the mode-of-operation doctrine, the Appellate Division noted that the telephone card was outside the store, not inside. Further, the store’s method of doing business was completed by the time the hazard was allegedly created. The phone card purchaser would have to take it off a rack, present it to the cashier for activation, and pay for the card. The transaction then would be complete. The Court concluded that extending the mode of operation doctrine would be unwise in such a situation where the nexus between the presence of the card on the rack and then on the sidewalk was “extremely attenuated.” Finally, the Court ruled that how the purchaser used or disposed of the card after leaving the store was not an integral feature of Durling’s operation. Therefore, the Court found “no principled basis” for the mode of operation doctrine to apply.
This matter affirms the mode of operation doctrine’s limited usefulness for plaintiffs. The doctrine normally arises in matters involving self-service areas of businesses, such as a buffet table. What Arroyo does is state that the there must be some sort of connection between the self-service activity and the hazard alleged. The more steps a plaintiff has to traverse to get to the alleged hazard, the more likely the Court will not permit the use of the doctrine.