The New Jersey Appellate Division, in an unpublished opinion, recently addressed the applicability of the “mode of operation” doctrine.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.
In Lee v. Shoprite, Docket No. A-0925-11T2 Plaintiff Tina Lee (“Plaintiff”), brought a personal injury lawsuit against Defendant Shoprite (“Shoprite”) for injuries sustained on June 29, 2008. On that date, Plaintiff went to Shoprite in Passaic, New Jersey to purchase groceries. She reached into the freezer to retrieve two containers of ice cream. As she walked away from the freezer, Plaintiff slipped and fell. She noticed the left side of her pants were wet Plaintiff also noticed a puddle of water approximately 8 inches by 10 inches.
Shoprite moved for summary judgment claiming that it did not have actual or constructive notice of the alleged dangerous condition. Plaintiff opposed stating that she was entitled to an inference of negligence under the mode of operation doctrine. In support, Plaintiff stated that customers in the freezer section handle frozen product. Ice on the product falls off and melts on the floor. The trial Court granted summary judgment. The Court ruled that no reasonable fact finder could conclude that condensation from an ice cream container created the puddle. Therefore, Plaintiff needed to prove actual or constructive notice of the puddle.
The Appellate Division affirmed the trial Court. The Court noted that Plaintiff was unable to prove that Shoprite had notice of the condition prior to her fall. For the mode of operation doctrine to apply, Plaintiff relied 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.
The Appellate Division ruled that both Nisivoccia and Wollerman were easily distinguishable. Both instances involved items that were sold on a self-service basis. These items could have foreseeably fallen on the floor because they were in open bags, bins, or containers. In Lee, Plaintiff attempted to argue that ice falling from ice cream containers or a freezer leaking would be under the control of the Defendant. The Court disagreed. Plaintiff’s fall occurred on a small area of clear liquid. Plaintiff provided no proof as to the source of the liquid and did not establish that the presence of the liquid was a hazard that Shoprite could have reasonably anticipated in order to guard against it. Further, there was no evidence as to how long the liquid was present.
Although not binding on any New Jersey Court, this case is instructive on applicability of the mode of operation doctrine. While not commonly used by Plaintiffs to prove their cases, we have had to confront this issue recently in matters where Defendants’ representative have testified that there was no notice of the alleged dangerous condition. This issue is also likely to arise in matters involving self-service areas of businesses such as a salad bar, a buffet table, or a soft-drink dispenser.
by Joseph A. Gurski, Esq.