In a much anticipated decision in the matter of Jeter v. Sam’s Club, A-2-21, decided on March 17, 2022, New Jersey’s Supreme Court declined to extend the mode-of-operation rule to a case where a food product from a sealed container allegedly spilled and caused a dangerous condition.
Typically, in a premises liability claim, a New Jersey plaintiff must show that a commercial property owner had actual or constructive knowledge of a dangerous condition on its premises prior to a plaintiff’s fall or other accident in order to establish liability. The “mode-of-operation” rule is a limited exception to that requirement that has been recognized in New Jersey since at least 1966. Under this rule, the plaintiff’s burden of proof is altered, and they are relieved of proving actual or constructive notice of a dangerous condition “in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.” Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). In such circumstances, a rebuttable inference of the defendant’s negligence is permitted, whereby the defendant must produce evidence of reasonable conduct.
Historically, the mode-of-operation rule has been applied in New Jersey to self-service operations where a food product was handled by a customer and where it was foreseeable that the self-service activity might create dangerous conditions. New Jersey’s highest court had previously limited the applicability of the doctrine in the matter of Prioleau v. Ky. Fried Chicken, 223 N.J. 245, 249 (2015). In that case, a customer at the Kentucky Fried Chicken fast food restaurant had slipped on a substance on the floor, unrelated to any self-service activity of that customer or any other. Rather, the condition was allegedly caused by oil and grease that employees had tracked from the kitchen, or from water that patrons had tracked in from outside the restaurant. The Court determined that this was not a mode-of-operation case, but a traditional negligence case, because it was wholly unrelated to the self-service activity. The Court Prioleau mentioned three characteristics in which the mode-of-operation could appropriately be applied: first, it may apply where a defendant chooses a customer self-service business model due to the “extraordinary risks” attendant to that setting; second, it may apply in all “areas affected by the business’s self-service operations;” and third, it may apply where “there is a nexus between self-service components of the defendant’s business and a risk of injury in the area where the accident occurred.”
In the Jeter decision, the Court acknowledged that the grape containers at issue – along with many other items in the Sam’s Club store – were handled by customers’ self-service, without employee supervision. Further, the Court acknowledged that there was a geographical proximity from the self-service area to the location of the fall. This satisfied the first two elements of the rule, requiring a self-service nature of the business and a geographical proximity to that self-service area. The third element, however – the nexus between the self-service activity and the dangerous condition causing the injury – was not satisfied. The Court ruled that Sam’s Club only permitted the self-service sale of pre-packaged sealed grape containers, and not grapes, in their display. Customers and employees were not intended to handle the grapes individually or loosely, but rather only in the containers in which they were packaged. The Court disregarded the argument that Sam’s Club was aware that its customers opened those containers routinely or occasionally, insofar as Sam’s Club took the position that although this did happen it was not permitted and considered tampering with the product.
For more information on this decision, or on premises liability in New Jersey generally, please contact the author, Tom Emala at email@example.com