In Troupe v. Burlington Coat Factory Warehouse Corp., 2016 N.J. Super. LEXIS 17 (2016), the Appellate Division recently rejected efforts to expand the "mode of operation" rule beyond the narrowly construed application recently clarified in a New Jersey Supreme Court ruling in Prioleau v. Kentucky Fried Chicken, Inc., 2015 LEXIS 957 (September 2015). The Court held that it was reversible error to charge the jury on the "mode of operation" rule, for a slip and fall on grease by the bathroom area, where there was no connection between the slippery condition of the floor and the self-service component of the business.
In Troupe, the plaintiff slipped on a stray berry in the baby department aisle of a Burlington Coat Factory store, and argued that the "mode of operation" rule applied; because the store did not have a cleaning schedule, and it was "foreseeable that food items would be left on the floor by parents or children." The Appellate Division found the plaintiff's argument inconsistent with the Prioleau ruling, and reaffirmed Summary Judgment in favor of the defendant.
In so holding, the Appellate Court explained that "mode of operation" liability is not created because a store's cleaning schedule is allegedly inadequate, but instead requires that the dangerous condition arises from some self-service characteristic of the store's operations. The Appellate Court found that because the berry in the baby department aisle had no demonstrable connection with any aspect of the store's self-service business, the rule simply did not apply. Guided by the Prioleau ruling, the Appellate Court reasoned that to apply the "mode of operation" charge in this instance would effectively swallow the rule by shifting the burden of production to self-service business to show what conduct by patrons was not foreseeable. To the contrary, for the rule to apply, it is the patron who must first show a clear nexus between the self-service component of the business and "a risk of injury in the area where the accident occurred."
Comment: Both Prioleau and Troupe are useful decisions that businesses and premises liability insurers can rely upon when defending against certain types of New Jersey premises liability cases. The defense should be encouraged to take advantage of these opinions to defeat "mode of operation" arguments and to pursue dismissals for those slip and fall accidents involving situations where the plaintiffs have no evidence of prior notice of transient conditions that are unrelated to the business of the store.
Sara L. De Long