By Thomas R. Maeglin, Esq.
A customer of a clothing store in a mall slips on a berry and falls. The store does not sell berries, there is no fruit in the area, and no one is seen eating in the vicinity. There is no evidence that the store had actual or constructive notice of the berry. Why should the store be liable for her injuries? A recent decision of the Superior Court of New Jersey, Appellate Division, in Troupe v. Burlington Coat Factory Warehouse Corp., — A.3d —- (2016), says it should not, and this decision clarifies the important ‘mode-of-operation’ rule.

Plaintiff contended that the store was liable under this rule. The problem? Babies and children. Babies and children, as any parent knows, require constant cleaning-up-after. And when a store operates a section called “Baby Depot”, selling baby and children’s clothing, things are going to wind up on the floor. Plaintiff’s expert said the store “… should have foreseen, that at various times those babies and children would be doing the things that babies and children normally do, including eating snacks, drinking drinks, and dropping things onto the floor.” Plaintiff reasoned that, if the store was not cleaning up after the little menaces, it should be liable.

She invoked the doctrine of ‘mode-of-operation liability’. This doctrine evolved in the courts over some time, was further developed by the Supreme Court in Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003), and was more recently addressed in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015). As the Troupe Court explained, the rule “…is a special application of foreseeability principles because of the risks posed by self-service and not a general rule of premises liability. When the rule applies, it relieves the plaintiff of the burden of proving actual or constructive notice of the dangerous condition. It gives rise to an inference of negligence, shifting the burden of production to the defendant, who may avoid liability if it shows that it did all that a reasonably prudent man would do in the light of the risk of injury the operation entailed.

However, the mode-of-operation doctrine has never been expanded beyond the self-service setting, in which customers independently handle merchandise without the assistance of employees or may come into direct contact with product displays, shelving, packaging, and other aspects of the facility that may present a risk. [W]hat is important is a nexus between self-service components of the defendant’s business and a risk of injury in the area where the accident occurred.” — A.3d —- The motion court had found that the mode-of-operation rule did not apply to Troupe’s claim against the defendant store because the berry “wasn’t anything that they’re selling.”

The Appellate Division agreed. It held that, “Mode-of-operation liability is not created merely because a store’s cleaning schedule is allegedly inadequate. Instead, such a theory of liability requires that the dangerous condition arise from a self-service characteristic of the store’s operations.” There must be a demonstrable nexus between the self-service component of the premises owner’s business and the risk encountered by the injured plaintiff. The burden is on the plaintiff.

“[I]t 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.” Here, the plaintiff did not show such a nexus, or indeed that the fruit had anything to do with the defendant’s business. “For our decision, because the berry in the children’s department aisle had no demonstrable connection with any aspect of [the defendant’s] self-service business, the rule simply does not apply.”

The Troupe Court showed wisdom, rejecting “an expansion that would swallow the rule by, in effect, shifting the burden of production to self-service businesses to show what conduct by their patrons was not foreseeable.” From a risk management point of view also, a different decision could have been problematic to say the least. One can only imagine the army of sweepers, mop-pushers and vacuum-operators needed to patrol the malls of New Jersey to guard against every fallen berry.

If you have questions about the Troupe decision, ‘mode-of-operation’ liability, or premises liability in general