The mode-of-operation theory of liability for a premises liability action against a business is a tempting strategy. It absolves an injured plaintiff of the burden of proving that the business owner had notice of a dangerous condition in time to address it. As tempting as it is, it has its limitations. For one, the plaintiff must show that the alleged condition was related to the manner in which the business is conducted.
Earlier this year, in February, we reported that the New Jersey Appellate Division issued an unreported decision, Cashour v. Dover Parkade, LLC, that limited application of the mode-of-operation theory where the plaintiff was unable to sustain a link between the object she slipped on and the defendant store’s business operations. In that case, the plaintiff fell on a plastic bag that was in front of a store. However, she could not link the bag to the store’s operations.
Now the Appellate Division has issued a reported decision addressing this theory once again. In Arroyo v. Durling Realty, LLC, the plaintiff alleged that she slipped on a discarded telephone calling card left on the sidewalk in front of a convenience store. The plaintiff linked the cards to the store, noting that the phone cards were displayed on racks near the store’s cash register next to the exit doors. She argued that due to the proximity of the cards to the door, the business should have foreseen that someone might buy a card, use it, and then immediately discard it on the sidewalk.
With no real proof as to actual or constructive notice, the plaintiff’s only chance was through this mode of operation argument. However, she had to convince the judges that “as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business.” The judges were not persuaded. Since the patron would have selected the card, paid for it at the cashier, and left the store, the nexus between a self-service operation and the card on the sidewalk was too attenuated. Summary judgment was affirmed.
This reported decision should help to clarify that notice is still a required proof burden for a claim against a retailer with limited exceptions.