No Tears Over Spilled Milk for Grocery Store in “Mode of Operation” Case (NJ)

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We’ve previously posted about the Mode of Operation rule in New Jersey, including the fact that the NJ Supreme Court is currently reviewing such a case.  While it seems there is a trend of expanding the rule in favor of the plaintiff’s bar, the decision in Novick v. Glass Gardens, Inc. is likely a victory for the defense.

The plaintiff in Novick slipped on milk that had dripped from a leaking container from the carriage of another customer waiting in line to pay for purchases.   In typical fashion, the plaintiff argued that it was the nature of the grocery store’s business that created the spill and, as such, the plaintiff was not required to prove that the store had actual or constructive notice of the condition.  Even though video surveillance captured the leaking milk carton and the store’s incident report documented the presence of the milk on the floor, the store moved for summary judgment arguing that it lacked sufficient notice of the presence of the milk and that the plaintiff, under these circumstances, was required to establish that the store had either actual or constructive notice of the condition.  The trial court agreed with the defendant and granted summary judgment.

On appeal, the plaintiff reiterated his argument that the “mode of operation” rule applied which dispensed with his need to prove notice by the defendant.  In affirming the trial court’s decision, the Appellate Division cited to a recent NJ Supreme Court holding which clarified the definition of a self-service area as “a location within a store where a customer handles loose items during the process of selection and bagging from an open display.”  Unconvinced that the defendant grocery store knew or should have known of a leaking container of milk in the carriage of another customer, summary judgment on behalf of the defendant was upheld.

We are closely monitoring the changes in the “mode of operation” rule and await the Supreme Court’s decision.  Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.