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Court Applies Mode of Operation Rule to Injury in Supermarket Caused by Water on Floor Due to Melted Snow from Shopping Cart

By on January 10, 2019 in Court Rulings with 0 Comments

Plaintiff Mindy Klarman was at Pathmark’s Lake Hopatcong supermarket on January 31, 2011 when she fell. She slipped on a puddle of water near the checkout, which came from snow off of the bottom of shopping carts, which had been brought into the store. In Klarman v. Pathmark Supermarket, 2018 N.J. Super. Unpub. LEXIS 2808 (App. Div. Dec. 24, 2018), plaintiff sued Pathmark Supermarket and Pathmark of Lake Hopatcong for her injuries. One of the issues on appeal was whether the trial court judge correctly charged the jury with the mode of operation rule.

Plaintiff had been at the store to purchase some items. It was a sunny day, but it had snowed the day before. There were piles of snow in the parking lot. Although plaintiff did not take a shopping cart, she noted that they were stored outside the store and throughout the parking lot.

Plaintiff grabbed her merchandise and went to the checkout to pay for her items. She slipped on a puddle of water and landed on her knee. She estimated the puddle was about 12 inches in diameter. She went to the hospital and learned that she had fractured her shoulder and her knee, which required surgery. She went to the hospital a second time to have the surgical staples removed from her knee. Thereafter, she had multiple rounds of physical therapy for the injuries to her shoulder and knee.

Despite the physical therapy, her weight bearing was still painful, although her knee had a good range of motion. She was diagnosed with arthritis under her kneecap and received gel injections to help alleviate the pain. Upon her final doctor visit, her shoulder had a good range of motion and was essentially resolved. However, her knee remained painful. Her doctor testified at trial that arthritis was a progressive condition and would cause increased pain when she engaged in physical activity. Moreover, she was not expected to fully recover from her injuries.

The jury found that the Pathmark supermarket was liable for the plaintiff’s injuries. It awarded her $1,530,000. The defendants appealed the verdict, claiming multiple trial errors, including the jury being charged on the mode of operation rule by the judge. When the judge “charges” the jury, he or she will instruct the jury on the law that they should apply in reaching their verdict. Under this rule of law, the plaintiff “would not have to prove defendants had actual or constructive notice of the alleged dangerous condition.”

On appeal, the defendants argued that the trial court judge should not have charged the jury in accordance with the mode of operation rule. The defendant contended that the jury should have been charged with “general negligence principles pertaining to injuries sustained by business invitees due to a dangerous condition of the businesses property.” However, the Appellate Division disagreed with this argument and found that the trial court judge correctly charged the jury with the mode of operation rule.

The Appellate Division noted that under the Supreme Court Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015) case,  the mode of operation rule is utilized to address the risks of certain businesses whose operations involve customer self-service. When this rule applies, “business invitees who are injured while engaging in customer self-service are entitled to an inference of negligence and need not prove that the business owner had actual or constructive notice of the dangerous condition that caused the accident.”

The court would consider whether the plaintiff showed that he or she suffered an injury in a self-service setting “where customers independently handle merchandise or come into direct contact with product displays, shelving, packaging, and any other aspects of the facility that may present a risk to the invitee.” The Appellate Division noted that self-service operations of the business “may extend beyond the produce aisle and other facilities traditionally associated with self-service activities.”

Here, it it was undisputed that the defendant supermarket was a self-service operation and that the plaintiff was injured in an area affected by the market’s self-service operation. She had slipped and fallen due to a puddle of water on the floor, near the checkout section of the store. The store manager testified that the customers brought shopping carts into the store and the courts were laden with snow, which had fallen earlier. Once inside the store, the snow melted and collected on the puddle on the floor.

With respect to measures taken to alleviate the situation, the store manager testified that mats were placed on the floor. However, the store did not have a regular protocol for inspecting the premises to make certain that there was no accumulation of water from snow brought into the store from shopping carts by customers. Also, the store only had one porter who was not required to address such conditions on a regular basis.

The Appellate Division rejected the argument that the mode of operation did not apply because it did not result from the handling of merchandise or the placement of products. The court found that, under the Prioleau case, the rule can apply to any aspect of the self-service business, “when the customer sustains an injury due to the manner in which the customer or employee handles merchandise or equipment.” The court noted that it was undisputed that the shopping carts were the store’s equipment and “that they were an essential aspect of defendants’ self-service business model.”

As the manager explained, it was the supermarket’s mode of operation to allow shopping carts to remain outside the store, which carts would be unprotected by snow. Further, the store allowed customers to bring carts laden with snow inside. It did not have any policy for removal of any accumulated snow from the carts before the customers brought them inside the store. Here, “the potential for customers to track snow into the building was contingent upon defendant’s business model, which involves the use of shopping carts in the market’s self-service operation.” Hence, the Appellate Division did find that the mode of operation was correctly applied and it was not an error for the trial judge to charge the jury with this rule of law.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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