New Jersey’s “mode of operation” rule operates to eliminate a plaintiff’s burden to show that a commercial defendant had notice — either actual or constructive — of an allegedly hazardous condition on its premises when a substantial risk of injury is inherent in a business operator’s method of doing business.  Since its inception, plaintiffs have fought to widen the umbrella of protection under the rule, while defendants angle to reduce its applicability.  Unfortunately for the defense side, Lebrio v.  Pier Shops at Caesar’s will be an important decision in favor of plaintiffs injured in the common areas of shopping malls.

The plaintiff in Lebrio  was a patron at the Pier Shops at Caesar’s in Atlantic City, New Jersey when she slipped and fell.  After her fall she noticed a puddle of clear liquid and an empty cup nearby.  Although she did not know how long the liquid had been there, the Trial Court determined (and the Appellate Court upheld) that she didn’t need to prove that fact.

The Pier Shops housed a food court and did not regulate consumption of beverages in the Shops’ common areas.  Of importance to the Court, an elaborate fountain display was located a short distance from the food court which enticed patrons to visit and watch the dancing water performance.  There was also evidence that beverage spills away from the food court were not uncommon, particularly on busy weekends.

The thrust of the “mode of operation” rule is not the nature of the defendant’s business, according to the Court, but rather whether the business allows patrons to handle merchandise or utilize the business’ services without intervention from the business’ employees.  The Pier Shops did not prohibit consumption of beverages in the common areas, and arguably encouraged it with placement of the elaborate fountain steps away from the food court.

Although the applicability of the “mode of operation” rule still depends on the specifics of each case, shopping malls will no doubt face more “mode of operation” claims. Thanks to Emily Kidder for her contribution to this post.  Please write to Mike Bono for more information.