• Mode of Operation Rule Applies Regardless of Whether the Source of the Hazard Is Identified
  • May 18, 2015 | Author: Gina M. Zippilli
  • Law Firm: Capehart & Scatchard, P.A. - Mount Laurel Office
  • Grocery stores, restaurants and similar businesses are exposed to greater liability every day. Their patrons, who eventually turn into plaintiffs, are absolved of greater accountability with each passing year. This makes it even more important these days for businesses to be aware of their potential exposure and also for them to implement preventative measures. A prime example of this is seen in Mattia v. ShopRite of Brookdale, 2015 N.J. Super. Unpub. Lexis (App. Div., February 6, 2015).

    In Mattia, plaintiff entered ShopRite at 7:00 a.m. shortly after the store opened. Like many of us, plaintiff walked in between the fresh cut flowers and potted plant stands on the one side, where customers could select flowers standing in pots of water, and a self-service salad bar, approximately seven feet from the flower area, on the other. Plaintiff slipped and fell approximately three feet from the salad bar and sustained an injury. After her fall, plaintiff noticed that she was sitting in a puddle of water. At no time was the source of the water identified by plaintiff, any ShopRite employee or any other witness.

    The case was tried. Plaintiff requested the trial judge provide the jury with the Mode of Operation Model Jury Charge. The Mode of Operation rule is a powerful weapon for plaintiffs. It relieves plaintiffs of the need to prove actual or constructive knowledge in situations which, as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct or incidents. It affords plaintiffs an inference of negligence and imposes on the defendant an obligation to show rebutting proof that it took prudent and reasonable steps to avoid the potential hazard.

    ShopRite successfully argued at the trial level that the jury should not be given such as charge because the source of the water was unknown. The jury returned a verdict of “no cause.” Plaintiff appealed and argued that the failure to provide the jury with the Mode of Operation charge was reversible error. The Appellate Division agreed and reversed and remanded the matter for a new trial. The reasoning: the location of plaintiff’s fall was sufficient evidence that would have permitted the jury to find that the puddle of water more than likely arose out of ShopRite’s flower display.

    In the end, the court’s reasoning was one of simple geography. This was not the basis on which the Mode of Operation rule evolved however. The Mode of Operation rule derived from equitable considerations that would hold businesses whose “nature” or “conduct” was likely to automatically create a hazard essentially to a higher standard of care. If it cannot be established that the “hazard” actually resulted from the “mode of operation,” then on what grounds can negligence be inferred?