Mode-of-operation refers to a legal theory that absolves a plaintiff from the burden of proving notice in a premises liability case. In a limited class of cases, New Jersey courts create a presumption of notice and shift the burden of proof to a commercial defendant to establish that it takes all reasonable precautions to prevent risks associated with the manner in which it conducts its business. Not surprisingly, plaintiffs often seek to extend this principle to a broad array of cases.
On September 28, 2015, the New Jersey Supreme Court weighed in on the type of case this theory applies to in its decision in Prioleau v. Kentucky Fried Chicken, Inc.. In this slip and fall case, the plaintiff fell on her way to the bathroom at KFC. Plaintiff’s counsel argued two theories of causation: either plaintiff fell because defendant’s employees tracked cooking oil and grease from KFC’s kitchen into the customer area near the bathroom or KFC failed to exercise reasonable care to keep the floor dry on a rainy evening. Plaintiff’s counsel argued that in either event, the slippery floor was due to the restaurant’s mode-of-operation. Based upon this principle, he sought to benefit from its rebuttable presumption the defendant was negligent and to eliminate the obligation to prove actual or constructive notice of the alleged hazardous condition.
The trial court charged the jury with two alternative mode-of-operation instructions in addition to a third charge that the plaintiff was not required to prove KFC had notice. After a three-day trial, the jury returned a verdict in favor of the plaintiff attributing 51% of fault to the defendants and reaching a total award of $250K.
The appellate panel of three judges in a split decision held that the mode-of-operation doctrine charge was improperly given as it applies only in limited circumstances when self-service is involved in the business operations. Such operations could include patrons filling a drink from a soda machine, selecting items from a condiment tray, or picking produce from bins at a grocery store. A jury should only be instructed on mode-of-operation when the defendant’s business involves a foreseeable, reoccurring condition that causes a plaintiff’s injury. Since one judge dissented, the plaintiff took an appeal as of right to the Supreme Court.
The New Jersey Supreme Court has now affirmed the appellate decision and limited the application of this doctrine strictly within the context of self-serve businesses. It only applies when an injury occurs in areas affected by self-service. It can apply whether the condition is caused by an employee or customer – so long as it derives from the included operations.
In Prioleau, there was no evidence in the record that plaintiff “was engaged in, or in contact with, any self-service activity” at the time of her fall. Simply, there was no “nexus” between the plaintiff’s alleged fall and the business’ mode-of-operations. The Court remanded the action for a new trial because the erroneous jury instructions were likely to have produced an unjust result.
While this decision should send a message that this doctrine has limited application, no doubt creative attorneys will continue to craft arguments seeking to avoid the burden of proving notice.
Thanks to Ann Marie Murzin for her contribution.