In Hockman v. Burrellys LLC, a New Jersey Court recently dealt with the “mode of operation” doctrine in the context of a fall in a sandwich shop. Ordinarily, an injured plaintiff attempting to recover damages under a theory of negligence must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. However, under the mode of operation doctrine, a plaintiff is relieved of proving actual or constructive notice where as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business. The burden is then shifted to the defendant to prove that it had taken reasonable steps to avoid the potentially dangerous condition. Importantly, for food services, the mode of operation theory had never expanded beyond the self-service customer setting where customers independently handle merchandise without employee assistance (e.g. supermarket fruit stands, salad bars, buffet-style delicatessens).

In this case, plaintiff approached the service counter to place her order. After ordering her sandwich, plaintiff decided to step outside to check if her car was legally parked. As she proceeded towards the exit, she slipped and fell on an unknown substance. Plaintiff testified that she did not see any liquid in the area where she fell, but she noticed that the bottom of her jean cuff was wet. The defendant shop-owner, who was the only other person present in the shop at the time of plaintiff’s fall, testified that she did not see anything on the floor. She also usually swept the shop’s floor in the afternoon and mopped at the end of the day. In addition, the last customer departed more than thirty minutes prior to plaintiff’s arrival.

At trial, plaintiff’s liability expert explained that plaintiff’s slip was caused by a hydroplaning effect—the tile flooring allowed liquid to freely move over the surface. He further opined that in a sandwich shop, liquids such as oil, vinegar, soda, and water have a probability of getting onto the floor. He also noted that the sandwich shop did not have standard procedures for inspections or maintenance, and did not place down mats or warning signs. At trial, the jury was charged under mode of operation doctrine and awarded plaintiff $1,280,081.67 in damages.

Defendant subsequently appealed asserting that the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. On appeal, the Appellate Division found that the trial court erred by finding that mode of operation doctrine applied to the facts of this case. The shop-owner explained that sandwiches were prepared and wrapped for customers. Although the shop had a refrigerator with prepackaged salads and beverages, plaintiff did not establish that the dangerous condition in this case was due to how these items were handled by other customers. Moreover, plaintiff had no idea what caused her to fall or why her jean cuff was wet. As such, without the mode of operation doctrine, plaintiff was required to prove that defendant had notice of the allegedly dangerous condition.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.