New Jersey Supreme Court Narrows The Application Of The Mode Of Operation Rule

• Published date: 05 July 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Schnader Harrison Segal & Lewis LLP
• Author: Mr Gary N. Smith

The Mode of Operation Rule

For nearly sixty years, businesses that were self-service in nature, whereby customers could help themselves to goods, were forced to rebut the presumption that they were negligent for slip and fall accidents on self-service items.¹ However, the New Jersey Supreme Court recently limited the application of that rule'providing an important reprieve for certain businesses.

The Mode of Operation Rule (the "Rule") relieves a plaintiff from proving that a business knew or should have known of a dangerous condition, and in turn holds that the dangerous condition is foreseeable as the result of the self-service nature of the business. The foreseeable risks associated with self-service businesses'i.e. permitting customers to carry food and beverage items without lids, tops, or trays from the cafeteria counter to their tables, or allowing customers in a supermarket to pick and package their own produce'gives rise to a rebuttable inference that the business is negligent.² Thus, the business must show that it exercised due care to prevent accidents.

Recent Case Law

Recently, in Jeter v. Sam's Club, the New Jersey Supreme Court limited the Rule and held that it does not apply to the sale of grapes in closed "clamshell containers"'sealed packages.³ In Jeter, a customer sued Sam's Club after she slipped on one or more grapes "halfway past" the fruit and vegetable aisle at the Linden, New Jersey store. Sam's Club argued that the Rule did not apply because the store sold grapes only in closed, sealed packages to avoid the unsafe conditions typically caused by loose grapes. Therefore, any unsafe condition of grapes on the floor was a result of customers negligently opening the sealed packages. The customer argued that the Rule was created specifically to guard against such instances of customer negligence.

The Court considered three elements to determine if the Rule applied: (1) the self-service nature of the business, i.e., whether customers are independently handing merchandise without the assistance of employees; (2) the geographic proximity between a plaintiff's injury and a business's self-service operations; and (3) whether there is a reasonable factual nexus between the self-service activity and the dangerous condition leading to the plaintiff's injury.

The first and second elements were not at issue since Sam's Club acknowledged that it sells products in a self-service manner, and because the customer fell near the fruit and vegetable...