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Mode of Operation

I have done some posts hereherehereherehere and here in the last year or so about the application of the so-called “mode-of-operation” theory in New Jersey fall-down cases.

In a recent opinion, the Appellate Division vacated a defense judgment in a fall-down case because the trial court refused to give a mode-of-operation jury instruction.

The plaintiff in Walker v. Costco Wholesale Warehouse, Docket No. A-2493-14T2 (App. Div. April 1, 2016), fell in a warehouse store on a substance having “a white appearance like a yogurt-based product.” As he fell to the floor, plaintiff noticed that the side of his pants were “wet” and “smeared” from the substance, although he “couldn’t tell [the jury] exactly what it was.” While plaintiff was in the course of shopping he had passed a small table on which a vendor was offering what appeared to be free samples of cheesecake. The cheesecake samples were contained in small paper cups.  Plaintiff walked past the display stand, apparently without taking a sample.

At trial, plaintiff requested a mode-of-operation jury instruction. He contended that the store had created a hazardous condition by its “mode of operation” in giving out free food samples to customers. Under this theory, plaintiff sought to be relieved of his burden of proving actual or constructive notice of the presence of the slippery substance on which he allegedly fell.

The trial court refused this requested instruction. While recognizing that the store permitted
customers to walk through the sales area with food and drink, the trial judge recalled no testimony that would “match up” the free items provided that day with the substance on the floor that caused plaintiff to slip. In denying plaintiff’s motion for a new trial, the trial court faulted plaintiff for being “unable to decisively identify the substance that he . . . slipped on[.]”

In its twenty-six page opinion (which has been approved for publication), the Appellate Division found that even though the plaintiff “has not provided a particularly compelling factual basis to support his mode-of-operation argument,” the trial court still erred by failing to give plaintiff the benefit of reasonable inferences when it declined to allow the jurors as fact-finders to consider whether the factual predicates for mode-of-operation liability were proven.  The Walker panel found that plaintiff had presented enough evidence to at least justify the model charge being issued. The jurors should have been allowed to evaluate whether Walker met his threshold burden of proving the necessary factual nexus to a defendant’s self-service activity. The Appellate Division held that the mode-of-operation charge was “legally warranted here provided that it include a specific instruction to the jurors to determine, as a factual predicate, whether the substance on which plaintiff slipped came from a free food sample offered to customers by one of the demonstrators.

As the New Jersey Supreme Court recently clarified, the effect of the mode-of-operation charge – in self-service situations where there is a reasonable factual basis in the evidence to support that theory – is to relieve a plaintiff of having to prove the usual element of actual or constructive notice of a hazard, which otherwise is necessary for an ordinary claim of negligence. Such circumstances give rise to “a rebuttable inference that the defendant is negligent, and obviates the need for the plaintiff to prove actual or constructive notice.” Prioleau v. Kentucky Fried Chicken, 223 N.J. 245, 258 (2015).

The Walker panel rejected the trial court’s conclusion that a a mode-of-operation charge was inappropriate because plaintiff could not “decisively” identify the substance upon which he slipped. “Plaintiff’s inability to describe the substance in more exact terms is understandable given the sudden and traumatic nature of his fall. Of course, he may well have been mistaken in his description and the substance could have come from another source, but that is a factual matter for the jury to evaluate.”  Walker v. Costco Wholesale Warehouse, Docket No. A-2493-14T2, slip op. at 9.

In remanding the case to the trial court to give the requested mode-of-operation charge, the Appellate Division also instructed that model charge be supplemented to include “a specific instruction advising the jurors that they cannot hold Costco liable under a mode-of-operation theory unless they find that plaintiff has persuaded them by a preponderance of the evidence that he slipped on a substance that came from the stand with free samples. At oral argument on the appeal, plaintiff conceded that there is no sufficient factual nexus to the store’s food and beverage concession, which was located a further distance within the store from the spot where he fell. His claim at the second trial must specifically turn on whether or not he slipped on a fragment of cheesecake offered at the vendor stand.”  Walker v. Costco Wholesale Warehouse, Docket No. A-2493-14T2, slip op. at 10.

So what of this latest foray into the mode-of-operation doctrine?  In my view, Walker is a mixed bag.  Plaintiffs, in all negligence cases, may find it useful in availing themselves of inferences to get their cases before juries.  In this respect, Walker may be seen as a reminder of longstanding principles concerning the proper role of the court and jury.  Certainly it can be of use in opposing defense motions for summary judgment. The Walker court did not find the mode-of-operation theory particularly compelling yet directed that the case proceed to trial. It emphasized that issues concerning the nexus between the store’s self-service activity and the dangerous condition allegedly producing a plaintiff’s injury are factual in nature and to be decided by a properly instructed jury.  Further, Walker gives explicit recognition to what should be obvious: that the sudden trauma involved in many falls makes it impossible for a person to identify the substance which causes a fall.

With respect to the mode-of-operation doctrine, however, it seems that the Walker panel has added a heretofore unknown element.  At the same time, it is not clear when that additional instruction is to be given.  The Walker panel effectively approved a variation to the model mode-of-operation charge which would add a requirement that a plaintiff must prove, by a preponderance of the evidence, that he or she slipped on a specifically identified substance. That requirement, to my knowledge, has no basis in case law particularly the New Jersey Supreme Court’s Prioleau decision.  Further, it seems to engender some tension with the panel’s own recognition that people who are involved in falls understandably may not know what caused the accident.

I welcomed Prioleau as having clarified this area of the law.  Guess not.  Walker only adds-back confusion.

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