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

Sign Up for E-News

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.

TAP Into Another Town's News:

You May Also Be Interested In

Sign Up for E-News


Winter Forecast for 3-5 Inches Continues through Early Sunday Morning in Randolph Area

February 17, 2018

RANDOLPH, NJ- A winter weather advisory remains In Effect From 4 pm this afternoon to 4 am Sunday according to the National Weather Service.

Total snow accumulations of 3 to 5 inches are  expected. 

Snow will quickly overspread the area from the southwest, becoming moderate to potentially  heavy at times this evening.

The snow should be finished by 4 a.m.

Plan ...

Randolph PTO Council Presents  “ALL IN” FUNDRAISER Featuring The Nerds

February 12, 2018


Randolph PTO Council presents our  “ALL IN” FUNDRAISER at the

Hanover Marriott, Route 10 E Whippany, NJ

Friday March 16th ~ 6:30pm - 11 pm

Featuring the band “THE NERDS”.

The Grand Raffle this year features fantastic prizes donated by generous local businesses. A $10 ticket gives you a chance to win a $5000 diamond ...

Morristown Happenings: Things to do in Morristown this Weekend

February 16, 2018

MORRISTOWN, NJ -  What do you have planned this President's Day Weekend?  Check out history at Washington Headquarter's new Discover History Center, take a glass blowing class, try your hand at a maple sugar demo or cheer for Morristown athletes as they compete this weekend. Whatever you chose, have a great weekend everyone!


Friday February 16

Yoga & ...

January Randolph Police Blotter Includes Many Outstanding Warrants

February 15, 2018

Jan 3, Janeth Ladino-Varon, 45, Randolph was arrested for an outstanding warrant issued by the Randolph Twp Municipal Court.  .  The defendant was processed and released.

Jan 10, Patrick C. Lake, 30, Denville was arrested and charged with burglary, criminal attempt and criminal mischief.  Lake was processed and transported to the Morris County Correctional Facility.

Jan 15, ...

Randolph Mayor Reflects on Interests and Concerns of Residents

February 15, 2018

I hope that everyone is enjoying the winter weather here in beautiful Randolph Township! It’s a wonderful time to enjoy many outdoor activities with family. From ice skating to sledding to skiing, it’s our varied seasons that attract so many to our wonderful community. Just be sure to stay safe. Do not ever go out on thin ice, and be careful when heading down those slopes! For those ...

Morris County School of Technology Teacher Nominated for National LifeChanger of the Year Award

February 7, 2018

DENVILLE, NJ - Morris County School of Technology teacher Jennifer Skomial has been nominated for the 2017-2018 national LifeChanger of the Year award.

Sponsored by the National Life Group Foundation, the national LifeChanger of the Year program recognizes and rewards the very best K-12 public and private school educators and employees across the United States who are making a difference in ...

Upcoming Events


Thu, February 22, 2:00 PM

Randolph Township Free Public Library, Randolph

Zoom Balloons Show at the Library

Arts & Entertainment Community Calendar Education Health & Wellness


Thu, February 22, 4:30 PM

Randolph Township Free Public Library, Randolph

Zoom Comedy Magic Show

Arts & Entertainment Community Calendar Education Health & Wellness


Thu, February 22, 5:30 PM

Primrose School of Randolph, Randolph

Open House


Ironia Teacher Named "Teacher Who Rocks" by WDHA

February 5, 2018

RANDOLPH, NJ- Ironia first grade teacher Cathy Murphy was recently recognized by WDHA Radio Station as a "Teacher Who Rocks".

Mrs. Murphy was nominated by Ironia paraprofessional Andria Barosi-Stampone, who wrote the following in her nomination. "Mrs. Murphy is a true role model not just for her students, but for her coworkers as well," she said. "She is a ...

Randolph Superintendent, RMS and RHS Principals Speak on School Safety Following Florida Tragedy

February 17, 2018

RANDOLPH, NJ-  Superintendent Jenn Fano made this statement regarding the tragedy in Florida on Wednesday:  “We are deeply saddened by the school shooting tragedy in Florida.  Our thoughts and prayers go out to all involved.  We are taking this opportunity to once again review all our protocols in the Randolph School District to ensure that we are doing everything ...

The Morris County Crusaders After Strong First Season Prepare For 2018

February 19, 2018

EAST HANOVER, N.J.- When the discussion about football in an unlimited weight league among eighth graders, Coaches Odysseas Delaportas and Jeff Eisele of Jefferson decided to take action. American Youth Football, a non-profit football and cheer program bearing the logo, "non intrusive all inclusive seemed like a perfect fit. 

Delaportas and ...

Parent Guide to Helping Kids Cope With the Florida Mass Shooting

February 18, 2018

The massacre at a Florida high school on Wednesday is hard for adults to wrap their head around, but it can be completely overwhelming for children who hear about it or see images of the carnage. Parents need to help guide their children through the fear, anger, upset and helplessness such a horrific attack can stir up in children.

“The first thing parents should do is assess their own ...

CCM Library to Offer Free Workshops in Grant Writing and Fundraising Workshops Provided by Foundation Center’s Funding Information Network

February 18, 2018

RANDOLPH, NJ – The County College of Morris (CCM) Library’s Foundation Center Funding Information Network is offering three free workshops on the Foundation Center products during the college’s Spring Break, March 12-15.   The CCM Library is a participant in the Foundation Center’s Funding Information Network. Network partners provide a suite of ...

CCM Launches a Degree in Virtual Reality Providing Students with a Range of Options in a Rapidly Developing Field

RANDOLPH, NJ – From gaming to training surgeons, virtual reality (VR) has become an increasingly used technology for both entertainment and learning. Recognizing that VR will only continue to grow as it becomes even more prevalent in our lives, County College of Morris (CCM) has launched an Associate in Applied Science degree in VR.

The degree will be offered starting with the Fall 2018 ...

Register for CCM Summer 2018 Sessions: Utilize Your Summer and Save on Tuition

RANDOLPH, NJ -- County College of Morris (CCM) offers an affordable way to earn credits, fast-track a college education, tackle a challenging class, earn credits faster or lighten a course load through its Summer Sessions program.

Courses offered cover a range of general education requirements and disciplines such as the arts, humanities, science, business, engineering, health and more. Summer ...

Atlantic Health, Five Additional NJ Hospital Systems Partner to Form 'Healthcare Transformation Consortium'

MORRISTOWN, NJ - Recently, Amazon, Berkshire Hathaway and JP Morgan Chase announced they were joining forces to reduce healthcare costs. Now six New Jersey-based health care systems, including Atlantic Health System -- parent corporation of Summit's Overlook Medical Center -- have been working on the same goal, and have formed a consortium designed to reduce costs, expand ...

Pediatric Dental Associates Of Randolph Participates In Give Kids a Smile Day

RANDOLPH, NJ —On Friday, Feb. 2 Pediatric Dental Associates of Randolph participated in the American Dental Association’s Give Kids A Smile Day (GKAS), providing free dental care to local children who desperately needed it. 

The children all received comprehensive exams, x-rays, cleanings and fluoride treatments.  Many of the children participating in the ...

Guest Column: The Great "Wait" of the College Process

February 18, 2018

"The Great Wait" of the College Application Process

For all the high school seniors and their parents, we are in the stressful "waiting period".  We've just finished or are finishing applications to all the schools we might possibly want to attend next year and now sit and wait our fate after the $60-$80 non-refundable application fees to at least 8-13 schools and ...


AtlantiCast Medical Minute: Atlantic Orthopedic Institute’s Scoliosis and Spinal Deformity Center

On this episode of the AtlantiCast Medical Minute, we’ll take you inside the Atlantic Orthopedic Institute’s Scoliosis and Spinal Deformity Center, with the center’s director, Jason Lowenstein, MD.

Video Link:

AtlantiCast Episode 011

Breaking Atlantic Health System news on this week’s AtlantiCast! Plus, find out why Morristown Medical Center is one of the best hospitals in the nation when it comes to recovering from joint surgery, see the newest center for fighting brain cancer and an Atlantic Health System red-carpet premiere!


Guest Column: The Great "Wait" of the College Process

February 18, 2018

"The Great Wait" of the College Application Process

For all the high school seniors and their parents, we are in the stressful "waiting period".  We've just finished or are finishing applications to all the schools we might possibly want to attend next year and now sit and wait our fate after the $60-$80 non-refundable application fees to at least 8-13 schools and ...