In Jeter v. Sam’s Club, 250 N.J. 240 (2022), the New Jersey Supreme Court addressed the compelling issue of when the infamous “mode of operation” rule applies. Under the “mode of operation” rule, plaintiffs who assert premise liability claims against businesses that utilize self-service models may be relieved of the burden of establishing that the operator had actual or constructive notice of a dangerous condition to succeed on a negligence claim. The New Jersey Supreme Court ultimately held that this rule is inapplicable where the store sold grapes in closed “clamshell” containers sealed with tape. The Court reasoned that selling the grapes in this manner, as opposed to open-top plastic bags, does not create a reasonably foreseeable risk that grapes will fall to the ground in the ordinary course of customer handling.
In Jeter, Plaintiff brought a negligence claim against Sam’s Club in Linden, New Jersey after sustaining injuries when she slipped on, one or more loose grapes. On the eve of trial, Sam’s Club filed a motion in limine to bar the plaintiff from seeking a mode of operation jury instruction, arguing that this rule did not apply since the grapes were sold in closed, sealed packages intended to safeguard against dangerous conditions caused by loose grapes. Plaintiff argued that this was a question for the jury to decide since the store was aware that customers were negligently opening the packages of grapes and the mode of operation rule was created to deal with such instances of customer negligence.
After conducting a N.J.R.E. 104(a) hearing, the trial court determined that the mode of operation rule did not apply. It reasoned that because Sam’s Club elected not to sell the grapes in open-top plastic bags, there was no nexus between the plaintiff’s fall and the store’s self-service sale of grapes. The Court then analyzed the case under traditional negligence principles and concluded that there was no evidence that the store had actual or constructive notice of the alleged dangerous condition. The Court was not persuaded by the argument that Sam’s Club knew its customers occasionally opened the grape containers while in the store. Additionally, opening the containers were not permitted and considered tampering with the product. The Court, therefore, dismissed the case and the Appellate Division affirmed the trial court’s judgment.
The Jeter decision is a significant victory for supermarkets, similar retailers, and their carriers as it prevents the expansion of the “mode of operation” rule where the retailer has taken the necessary precautions to secure their otherwise “loose” products. As detailed, the use of secure packaging was instrumental in preventing the applicability of the doctrine and kept the onus on the plaintiff to prove notice. In addition, this decision provides owners and operations with a template on how to mount a strong defense against such claims and safeguards the potential from being held strictly liable when customers tamper with their products. Despite the use of secure packaging, retailers must still be mindful to operate their premises in a reasonable and prudent manner to prevent any inference of constructive notice.
