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New Jersey’s Highest Court Limits the Mode of Operation Doctrine

April 20, 2022

Author: Jennifer L. Moran

In a 4–2 decision, the Supreme Court of New Jersey limited the application of the judicially created rule known as the “mode of operation” doctrine. The mode of operation doctrine relieves a plaintiff of the burden of proving actual or constructive notice of a dangerous condition in a situation in which a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct or incidents. The rule has been applied where food is sold or served in open containers or bins, such as food courts, supermarkets or fast food restaurants. In many cases, a plaintiff’s failure to provide any evidence that the defendant had actual or constructive knowledge of the alleged dangerous condition is the defendant’s sole opportunity to obtain summary judgment to dismiss the claim. 

On March 17, 2022, the New Jersey Supreme Court refused to apply the mode of operation doctrine in Jeter v. Sam’s Club. The plaintiff alleged she sustained injuries when she slipped on one or more grapes while walking away from the checkout area past the fruit and vegetable aisle. Sam’s Club asserted it had no actual or constructive notice of the hazardous condition – loose grapes on the floor. 

Despite the fact that Sam’s Club is a self-service business, it chose to sell grapes in closed clamshell containers. The court therefore found there was no foreseeable risk that grapes would fall on the ground in the process of ordinary handling by customers. The court held the mode of operation doctrine did not apply and the plaintiff had to establish the defendants knew or should have known that the grapes were on the floor for a period of time prior to the accident and failed to take reasonable remedial action. In this recent decision, the court limits the application of the mode of operation doctrine because the merchandise was in a sealed container, finding the pre-packaged merchandise did not create a foreseeable risk of spillage and there was no nexus between the plaintiff’s fall on grapes and the self-service sale of grapes in containers. 

In 2003, the court in Nisivoccia v. Glass Gardens, Inc. held the mode of operation doctrine applied to grapes that were sold in open-top, vented plastic bags that permitted spillage. Then most recently, in Prioleau v. Kentucky Fried Chicken, the court affirmed the rule is limited to self-service settings wherever there is a nexus between self-service components of the business and a risk of injury in the area where the accident occurred, and whether the injury resulted from employee handling, customer negligence or the inherent qualities of the merchandise itself. 

In Jeter, the dissenting Justices opined that because Sam’s Club knew its customers occasionally opened the grape containers in the store, it was reasonably foreseeable that loose grapes would fall to the floor, endangering unsuspecting customers. The dissent further opined that the majority’s approach will lead to less safe conditions in stores, more accidents, and an increased number of blameless and uncompensated victims. 

This decision could have widespread application for the defense of negligence actions for many clients with retail and restaurant space. Wilson Elser looks forward to the opportunity to apply this new limitation to the mode of operation doctrine in assisting commercial property owners in defending claims related to accidents involving the sale of self-service merchandise and food.

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