Mode-Of-Operation Rule Narrowly Construed
In a published decision by the New Jersey Appellate Division, Troupe v. Burlington Coat Factory Warehouse Corp., (A-1687-14T4), the court found that the mode-of-operation rule does not apply when the hazard that causes a plaintiff’s injury is not significantly connected with any self-service portion of defendant’s business. The court’s ruling mirrors the Supreme Court’s recent decision in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015)(holding that it was reversible error to charge the jury on the mode-of-operation rule when there was no connection between the condition of the floor where plaintiff fell and the self-service aspect of the restaurant).
Plaintiff Annette Troupe slipped on a berry in the aisle while in the “Baby Depot” department at Burlington Coat Factory and suffered injuries to her knee and back. She retained a liability expert who opined that while the store employed an outside cleaning service overnight, the fact that store employees did not periodically inspect or sweep the floors contributed to plaintiff’s fall. The expert noted that it was foreseeable that babies and children, typically with their parents in that department, would eat snacks, drink and drop things onto the floor, creating a substantial risk of injury. Defendant filed a summary judgment motion based on the fact that there was no evidence of actual or constructive notice by Burlington of the berry prior to plaintiff’s fall. The trial court granted the motion and dismissed plaintiff’s claim, also rejecting the plaintiff’s request to apply the mode-of-operation rule because the berry “wasn’t anything they’re selling.” An appeal ensued.
The court explained that while business owners owe invitees a duty of care to provide a safe environment, generally a business is not liable for damages caused by a hazardous condition of which it had no actual or constructive notice. See Nisivoccia v. Glass Garden, Inc., 175 N.J. 559 (2003). Here, there was no evidence that Burlington had actual or constructive notice of the berry on the floor. There was no proof that an employee saw or was notified about the condition prior to plaintiff’s fall. It was unclear how long the berry had been on the floor, and no other berries were found in the area. As a result, the Appellate Division found that the trial court judge was correct in determining that Burlington did not breach its duty to plaintiff.
Further, the court rejected plaintiff’s attempt to “expand the mode-of-operation rule beyond the narrow circumstances to which it has been held to apply…” Plaintiff argued that the rule should apply to the store’s inspection and cleaning schedule because it was foreseeable that food items would be brought into the children’s department and dropped on the floor. According to the court, the mode-of-operation rule is not a general principle of premises liability, but permits a plaintiff to shift the burden of production regarding notice of a hazardous condition to a defendant. However, this rule is applied only in self-service settings because of the risks inherent in permitting customers to independently handle merchandise.
In this case, the court found the rule did not apply since the accident did not involve any self-service component of Burlington’s business, namely selling clothing and other packaged non-food items. The accident occurred in an aisle, and not near clothing racks or other self-service areas of the store. In addition, plaintiff did not meet her burden of showing a clear nexus between the self-service aspect of the business and a risk of injury where the incident occurred.
It appears that Troupe is another case in a clear line that limits the scope of the mode-of-operation rule, and reinforces the need for a plaintiff to establish the traditional notice requirements in order to prove the elements of negligence in premises liability claims.