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In my years of practice, I have noticed a marked reluctance –particularly, it seems, on the part of my out-of-state colleagues to take on fall-down cases. While I  understand that these cases are not easy, I do not believe that they, as a class, should be refused.

New Jersey is one of many jurisdictions which adheres to the so-called “mode-of-operation” doctrine. In addition to New Jersey, states following versions of the mode-of-operation doctrine include Arizona, Connecticut, Florida, Hawaii, Idaho, Illinois, Indiana, Kansas, Massachusetts, Mississippi, Missouri, New Jersey, New Mexico, Oklahoma, Tennessee, Texas, Utah, Vermont, Washington, Wisconsin, and Wyoming. Recently, in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015), the New Jersey Supreme Court rendered an opinion which clarified mode-of-operation law.

Immediately the defense bar pronounced that the Court had “limited” the theory.  One noted defense firm claims on its blog, for example, that “[n]ow, when an accident occurs in a New Jersey establishment that has a self-service component, the Mode-of-Operation Doctrine will no longer automatically be applied if the accident occurs outside of the self-service area of the business.”  In my view, this is incorrect and plaintiffs’ attorneys should not be any less diligent in seeking a mode-of-operation jury instruction.

Prioleau did not state that the mode-of-operation rule is limited to self service areas.  It is true
that, in New Jersey “the mode-of-operation doctrine has never been expanded beyond the self service setting.”  Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 262 (2015)(emphasis added).  This was the first of four guiding principles which the Prioleau Court derived from its review of New Jersey mode-of-operation jurisprudence.

The Court made clear, however, in its second of four “Prioleau principles,” that a “setting” is not the same as a physical/geographical “area.”  Rather, the Prioleau Court stated that “the [mode-of-operation] rule applies only to accidents affected by the business’s self-service operations, which may extend beyond the produce aisle of supermarkets and other facilities traditionally associated with self service activities.”  Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. at 262 (emphasis added).  It seems to me, then, that any argument which attempts to limit the mode-of-operation doctrine to self-service locations or areas finds no support in, indeed is contradicted by, the plain language of Prioleau.  This important case teaches that the mode-of-operation doctrine is limited not to “self service areas” but instead to areas affected by self-service activities.  As explained by Justice Patterson, writing for the unanimous Prioleau Court: “The dispositive factor is not the label given to a particular location, but whether there is a nexus between the self-service components of the defendant’s business and a risk of injury in the area where the accident occurred.”  Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. at 262.

The third underpinning of Prioleau was its pronouncement (ignored in the defense-oriented summaries which I have seen) that “the mode-of-operation charge may be given even in the absence of evidence that the carelessness of the patron or another patron, gave rise to the dangerous condition.” Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. at 263.

In its fourth and final mode-of-operation principle, the Prioleau opinion answered perhaps the most important question: What difference does all this make? The answer is twofold.  First, “[t]he rule relieves the plaintiff of the burden of proving actual or constructive notice of the dangerous condition.” Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. at 263.   Secondly, “[i]t also gives rise to an inference of negligence, shifting the burden of production to the defendant… .” Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. at 263.

In sum, if the mode-of-operation doctrine applies, “it substantially alters the ordinary allocation of the burden between the parties.”  Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. at 263.  Clearly, then, plaintiffs’ counsel would serve their clients well to convince trial judges to give a mode-of operation instruction (New Jersey Model Jury Charge, Civil, 5.20F, sec. 10 (Actual and Constructive Notice)).  In order to do so, though, we are going to have to educate those judges about what Prioleau really says and push back against the defense bar talking point that this important case “limited” the mode of operation doctrine so as to confine its impact to certain areas of a business.  This is, to say the least an oversimplification.  It is not about, as some defense attorneys have already argued, “location, location, location.”  Indeed, the biggest takeaway from Prioleau was its explanation that “the mode-of-operation rule is not a general rule of premises liability, but a special application of forseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a customer self-service business model.” Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. at 262.

Therefore, in every fall-down case where the location of the fall bears any relation to the self-service component of the business, plaintiff’s counsel should emphasize the “extraordinary risks” of such businesses and insist upon a mode-of-operation instruction.  It is of no moment if the fall, itself, occurs outside of an actual self-service area so long as there is some nexus between the accident and customer self-service. Prioleau did not limit the mode-of-operation rule.  Rather, it rejected the view of a dissenting Appellate Division judge which would have expanded the doctrine.  Put otherwise, the Prioleau Court maintained and clarified the status quo.

The defense bar is already pushing the line that Prioleau was a retreat from previously announced mode-of-operation principles.  Yet, nothing in the case supports such a reading.  For our part, plaintiffs’ attorneys must use Prioleau to support our requests for mode-of-operation instructions and inferences of negligence embodied in such charges.

Finally, I recommend Prioleau to my out-of-state colleagues and hope they fight the good fight in advancing the mode-of-operation doctrine where appropriate.  If this theory has yet to be embraced in your jurisdiction, you may want to consider requesting the appellate courts of your state to adopt this approach.  In this regard, Prioleau’s explanation of the mode-of-operation doctrine in terms of general forseeability rather than as a special rule of premises liability may be helpful.

-Karim

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