Clean Up in Aisle 5: Focus on Premises Liability

Recently, our state courts provided clear guidance to business owners concerned with their legal obligation to patrons entering their premises.  The general rule under New Jersey law has not changed, but two decisions—one from the Supreme Court and one from the Appellate Division—reinforce what businesses need to do and what accident victims need to prove in order to prevail in slip-and-fall litigation.     

Business owners owe a duty of reasonable care to provide invitees with a safe environment when they enter the premises.  The duty of due care includes an affirmative duty on the part of business owners to inspect the premises to ascertain and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.  When slip and fall accidents occur at service establishments, plaintiffs may sometimes benefit from the “mode-of-operation” rule, which operates to shift the burden of proof to business owners though ordinarily that burden rests with the plaintiff.  The legal principles that govern these types of cases are discussed in this article.

The mode-of-operation rule

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On a very rainy evening, a female patron and her companions entered a Kentucky Fried Chicken restaurant.  Before ordering food, the woman, Ms. Prioleau, slipped and fell on her way to the bathroom.  She believed the cause of her fall was either grease tracked from the kitchen into the eating area, or water tracked into the store by customers.  She sued for the restaurant for the injuries that resulted from the fall. 

In her suit, our Supreme Court considered whether the “mode-of-operation rule” applied.  The mode-of-operation rule acts to shift the burden in slip and fall cases.  Ordinarily, the plaintiff bears the burden of proving that a defendant has actual or constructive notice of a dangerous condition for a sufficiently long period of time prior to the accident such that the premises owner should have noticed and corrected the situation prior to the happening of the accident.  In settings where owners invite patrons to engage in self-service, however, the mode-of-operation rule operates to shift the burden to the business owner.  In self-service settings, customers independently handle merchandise, or may come into direct contact with product displays, shelving, packaging, and other aspects of the facility that may present a risk.  When the rule applies, a plaintiff is relieved of the burden of proving actual or constructive notice of a dangerous condition.  Instead, the rule gives rise to an inference of negligence, shifting the burden of production to the defendant, who may avoid liability only if it comes forward with evidence of due care. 

To invoke the mode-of-operation rule, however, a patron must first establish a clear nexus between the self-service component of a business and a risk of injury in the area where the accident occurred.   More specifically, it is a plaintiff’s burden to establish that it was foreseeable to the business owner that she would serve herself, or otherwise directly “engage with products or services, unsupervised by an employee."  KFC was a facility that had both service and self-service components.  Prioleau did not prevail in the case against KFC (even though KFC patrons utilized beverage dispensers, a self-service component of its business) because she insisted that her accident occurred due to rainwater or kitchen grease.  Since the cause of her fall was something unrelated to any self-service aspect of KFC’s business, she had to prove actual or constructive notice of the dangerous condition, which she failed to do. 

Refusal to extend the mode-of-operation rule

The Appellate Division, in Troupe v. Burlington Coat Factory Warehouse, Inc., refused to extend the mode-of-operation rule beyond the narrow circumstances to which it has previously been applied.   In that case, a patron of Burlington Coat Factory slipped and fell on a berry that was on the floor of the “baby depot” section of the store.  Troupe argued that the mode-of-operation rule should apply to the facts of her case. 

According to plaintiff’s expert, Burlington should have expected that in an area where baby and children's clothing was sold, it was foreseeable that youngsters would snack and inevitably spill food or drink on the floor.  Burlington admitted that its floors were not periodically swept during the day.  Plaintiff argued that she should not have to prove anything further since, she claimed, the store had constructive notice that the floors in the “baby depot” area would become dangerous if not periodically cleaned. 

The Appellate Division was satisfied that because the berry in the aisle of the children's department had no demonstrable connection with any aspect of Burlington's self-service business, the mode-of-operation rule did not apply.  The Court contrasted the facts of the case with another case in which the mode-of-operation rule did apply. 

That case (Nisivoccia  v. Glass Gardens, Inc.) involved a slip-and-fall due to a grape located on the floor  near where grapes were packaged and sold in plastic bags that were open at the top.  In concluding that Ms. Troupe had the usual burden of proving actual or constructive notice of a dangerous condition, the Court hoped to put to rest any confusion over the limited scope of the mode-of-operation rule.


Linda Kern is a Randolph resident who is in private practice in Morristown. She is admitted to the New York and New Jersey bars and has litigated in both state and federal courts.

The opinions expressed herein are the writer's alone, and do not reflect the opinions of or anyone who works for is not responsible for the accuracy of any of the information supplied by the writer.

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