Defendants in premises liability actions often rely upon lack of notice of an allegedly hazardous condition as a defense. In order to prevail, a plaintiff must prove that a commercial land owner knew or reasonably should have been aware of the existence of a hazardous condition. However, a plaintiff need not establish notice under the “mode of operation” rule, where the nature of the defendant’s business is such that the existence of hazards is reasonably foreseeable under the circumstances. The recent appellate ruling in Prioleau v. Kentucky Fried Chicken, et al., further refines this controversial issue.
The plaintiff in Prioleau was a patron at a KFC restaurant on a very rainy day. As she approached the restaurant’s restroom, she claimed to have slipped and fell on a combination of water and grease. Over the defendant’s objection, the trial court judge charged the jury with the mode of operation rule, determining that the nature of the restaurant’s “fast food” business, which involved the use of oil fryers and heavy customer traffic, warranted the charge. Following a verdict for the plaintiff, the defendant appealed, arguing that the jury charge was improper under the circumstances.
In granting the defendant’s appeal, the Appellate Division tracked the long history of the rule and its application. The Court highlighted certain circumstances in prior cases where the mode of operation rule was applicable – such as string beans on the floor in the area of a self-serve produce department, grapes selected from a self-serve bin that fell in the check-out area, soda spills in a mall food court. Central to these cases was the self-service nature of the commercial defendant’s business and the extent to which a customer was involved in the method of the defendant’s business operation.
Here, the Appellate Division found that there was no causal connection between the defendant’s status as a fast food restaurant and the nature of the plaintiff’s accident. The Court reasoned that mode of operation liability cannot be imputed simply because a defendant is engaged in a particular type of business, but rather, each case must be determined based on the specific facts. Importantly, the Court found that although the defendant incorporated oil in its food preparation, customers here, unlike grocery store patrons selecting produce from self-serve displays, are not involved in the essential business operation of food preparation. The focus of the doctrine, the Court reasoned, is on the business model of the operation and the extent to which it relies upon self-service by a defendant’s patrons.
Thanks to Emily Kidder for her contribution to this post. Please write to Mike Bono for more information.