New Jersey Supreme Court defines boundaries of the Mode of Operation Doctrine finding it not to apply to the sale of grapes in closed containers
The New Jersey Supreme Court ruled in a 4-2 decision that the “mode of operation rule does not apply to the sale of grapes in closed clamshell containers.” Jeter v. Sam’s Club (A-2-21) (085880). The decision limits liability for injuries suffered due to a fall from a product spilled or dropped from self-service containers.
In the decision, the Court first defined the mode of operation rule as “a judicially created rule that alters a plaintiff invitee’s burden of proof in certain premises liability negligence actions.” Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 258 (2015). Specifically, the rule allows plaintiffs who bring premise liability claims against a business that employs self-service models to bypass the need to show that the business had actual or constructive notice of a dangerous condition to establish negligence. Id. at 248.
Plaintiff Aleice Jeter sued Sam’s Club due to injuries she suffered in its Linden, New Jersey store after she slipped on grapes. Jeter supra. at *2. Sam’s Club sold its grapes in closed clamshell containers secured with tape. Ibid. Additional testimony from Sam’s Club provided that this was the only way the store sold grapes, which were delivered to the store from a distribution center that pre-packaged the grapes and taped the containers shut. Id. at *6. The containers were not intended to be opened by customers before buying them and were made transparent so that customers could see the quality of the grapes without needing to open the packaging. Id. at *7.
Nevertheless, the plaintiff testified that during her monthly trips to Sam’s Club, “she had observed loose grapes not in their containers ‘several times.’” Id. at *6. Plaintiff also testified that she observed other customers opening the taped clamshell packaging to taste grapes. Ibid.
On the eve of trial, the trial court conducted a N.J.R.E. 104(a) hearing and “determined that the mode of operation rule did not apply.” Jeter supra. at *2. The trial court concluded that Sam’s Club “elected to sell grapes, not loosely, but in containers, that will certainly be less of a danger.” Id. at *7. The Appellate Division affirmed. Id. at *9.
The Supreme Court granted the plaintiff’s petition for certification, which asserted only the applicability of the mode of operation rule. Id. at *10. Before the Court, the plaintiff argued “that a jury instruction on the mode of operation rule should have been given; the jury should have been allowed to determine if the rule applied to the sale of grapes in clamshell containers; and, if the jury determined that the rule applied, whether Sam’s Club discharged its duty under the rule.” Id. at *10-11. Therefore, the sole issue before the high court was “whether the mode of operation rule applies to the sale of grapes in closed clamshell containers.” Id. at *13.
The Court first looked to New Jersey’s general premises liability law, which provides that a proprietor owes “his invitees due care under all the circumstances.” Prioleau supra. at 257. Where “an invitee is injured by a dangerous condition on the business owner’s premises, the owner is liable for such injuries if the owner had actual or constructive knowledge of the dangerous condition that caused the accident.” Ibid.
However, a plaintiff is relieved “of the burden 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). Stated succinctly, the mode of operation rule, when applicable, “gives rise to a rebuttable inference that the defendant is negligence, and obviates the need for the plaintiff to prove actual or constructive notice.” Prioleau supra. at 258.
The Court then provided background to the mode of operation rule. First, the Court looked to the matter of Bozza v. Vornado, Inc., where a plaintiff slipped and fell on a sticky, slimy substance while purchasing a soda at the defendant’s self-service cafeteria. 42 N.J. 355, 358 (1964). In Bozza, the defendant allowed customers to carry food and beverage items without lids, tops, or trays from the cafeteria counter to nearby tables. Ibid. Consequently, the Court held in Bozza that the plaintiff did not need to prove actual or constructive notice of a dangerous condition because “the nature of defendants’ business and the general condition of defendants’ premises would permit a jury to infer negligence.” Id. at 361.
While the Court examined additional cases applying the mode of operation rule, the Court found the more recent matter of Nisivoccia supra. to be of particular relevance. There, the Court applied the mode of operation rule where a plaintiff slipped and fell on loose grapes near the checkout lanes of a supermarket. Contrary to Jeter, the defendant in Nisivoccia “packaged grapes in ‘open-top,’ vented plastic bags that permitted spillage.” Id. at 561. Due to the nature of the packaging, the Supreme Court found that grapes could easily have fallen out when accidentally tipped or opened in a shopping cart and that, as a result, it was foreseeable “that loose grapes would fall to the ground near the checkout area, creating a dangerous condition for an unsuspecting customer walking in that area.” Id. at 565.
The Jeter court contrasted the facts before it with Nisivoccia to find that although the first two elements of the mode of operation rule were satisfied – “the self-service nature of the business and geographical proximity” – the third element requiring “a reasonable factual nexus between the self-service activity and the dangerous condition causing plaintiff’s injury” was not met. Jeter supra at *21. The Court noted that unlike the defendant in Nisivoccia, Sam’s Club “permitted only the self-service sale of pre-packaged sealed grape containers, not grapes, on the display.” Ibid. (emphasis in original). Further, as both customers and Sam’s Club employees were not intended to handle the grapes, but rather the container secured by tape, the “method posed virtually no chance of spillage during ordinary, permissible customer handling.” Id. at *22.
Thus, the Court refused to expand the boundaries of the mode of operation rule. Instead, the Court has made clear that the rule does not apply when a customer is handling a product’s sealed container rather than the product itself. Even knowledge of customers occasionally tampering with the packaging is not enough to invoke the doctrine.
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