The defense bar scored another small victory in the ever-evolving “mode-of-operation” argument which focuses on the manner in which a commercial establishment conducts its business. If argued successfully, a plaintiff may be relieved of the typical burden to prove notice if they can instead prove that the commercial defendant should have been aware of the reasonable possibility that a hazardous condition could be created solely based upon the defendant’s business practice.

The plaintiff in Anderson v. Stop and Shop Supermarket Company, L.L.C. claimed to have slipped and fallen on a “semi-solid substance” on the grocery store aisle while shopping in the frozen food section. She could not identify the substance, where it came from, or how long it had been there. After the fall, the store manager was quickly notified. He found the floor to be dry and semi-solid substance free. He also testified that maintenance porters routinely walk the store monitoring for hazardous conditions.

The defendant successfully moved for summary judgment arguing that the plaintiff could not prove that the store had actual or constructive notice of the presence of the substance which she claims caused her accident. On appeal, the plaintiff argued that the self-service nature of the store’s business practice warranted a finding of constructive notice.

But the Appellate Division was not convinced. Prior decisions in this long line of cases have held a food store liable when a customer sustains injury due to a hazardous condition inside the store, such as a grape on the floor in the checkout area. However, the Court highlighted the plaintiff’s failure to demonstrate the necessary nexus between the hazardous condition and the defendant’s business operation. A grape, for example could reasonably be expected to fall onto the floor due to careless handling in the checkout area. On the other hand, the Anderson Court found it unreasonable to impute constructive notice for an unknown substance in an aisle containing packaged and sealed containers.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.