New Jersey follows the “mode of operation” rule, which determines that in a slip and fall case, a plaintiff is not obligated to prove actual or constructive notice of a hazardous condition if the day-to-day operations of a retail store create certain dangerous conditions allegedly causing the fall. Over the past five decades, New Jersey courts have expanded on this rule, adding that as long as the plaintiff can show a nexus between the store’s business operations and the alleged hazard, a lack of notice is not a material defense. Today, the most important consideration is whether the store’s business operations could have generated the hazard in question. This expansion of the “mode of operation” doctrine has proved summary judgment motion success to be an extremely difficult task for retail stores.

This expansion suggests that defendant would be liable even if the particular unsafe condition was unknown to them and/or their employees. The plaintiff is completely released from the burden of proving that the defendant had actual or constructive notice of the hazardous condition, only needing to prove that the hazardous condition was caused by the defendant’s employees or other customers, and that the hazardous condition was likely to result from the particular manner in which the defendant’s business was conducted.

The New Jersey Supreme Court is currently reviewing a case, Prioleau v. Kentucky Fried Chicken, which may have significant impact on the “mode of operation” rule. The case considers whether the mode of operation doctrine should apply where a customer at a fast-food restaurant slipped on water tracked in from a rain storm. The Appellate Division held that there was no nexus between the operation of the store and the fact that it was raining. The majority held that the plaintiff must establish a causal nexus between the business operation and the harm causing injuries, while a partial dissenting opinion stated that the “mode of operation” rule should apply. There is concern that the dissent’s reasoning is excessively broad, causing any slip and fall case involving track-in rain, and other elements, to invoke the mode of operation doctrine, where the plaintiff would not have to show any notice of defect on the part of the business owner.

If the Supreme Court follows the dissent’s reasoning, business owners will face greater difficulty in defending “mode of operation” cases in the future.  We will follow the case and blog further once a decision is rendered.

Thanks to Chelsea Rendelman for her contribution to this post.