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Mode Of Operation Doctrine Not Applied To A Fall At Restaurant Due to A Greasy Food Wrapper

By on September 17, 2021 in Civil Lawsuits with 0 Comments

Plaintiff Francine Latorraca fell while a customer at a McDonalds restaurant and suffered an injury.  She claims to have fallen as a result of a greasy food wrapper on the floor near the front register. The issue in Latorraca v. Aladyn, Inc., 2021 N.J. Super. Unpub. LEXIS 998 (App. Div. May 25, 2021) was whether McDonalds could be liable under the application of the mode of operation doctrine or under an alternative negligence theory.

On the day of the accident, the plaintiff had entered through the back entrance of the restaurant.  She had walked up to the front register to place her order.  After she ordered her food, but before leaving the counter area, a young female dropped a plastic cup.  As plaintiff bent down to pick up the cup, her right foot slipped and she fell.  When she looked at the floor near where she fell, plaintiff saw a wrapper which she described as “wrinkly” and “yellow with a brown… tint to it.”  Further, she stated that the wrapper “felt like a light grease as opposed to if you have a sandwich two hours ago and it gets coagulated grease, it’s a different feeling.  This one felt like it was fresh, like.”

The plaintiff saw nothing else on the floor where she fell, except for this wrapper.  There was no water or any substance of any kind on the floor.  She did not think the wrapper had been on the ground for a long time and thought that the person before her maybe had dropped it.

The McDonalds manager was deposed.  Although he was not an eyewitness to the fall, he testified that the area in question was cleaned “all the time,” and that there was an employee at the restaurant dedicated to cleaning the lobby. 

The defendant restaurant moved for a summary judgment, claiming that the plaintiff failed to present any issues of negligence or other basis to impose liability for her fall.  Plaintiff argued against the motion, stressing the dangerous and slippery condition of the floor where she fell.  The trial court granted the defendant’s motion and this appeal ensued.

Plaintiff argued two theories of defendant’s liability, both of which the trial court had rejected.  First, she contended that the defendant restaurant was responsible for the slippery condition of the floor by the store counter because of its “mode of operation.”  Second, she argued that even if the mode of operation theory failed, she was entitled to present her claims to the jury under ordinary principles of negligence.

The Appellate Division rejected the mode of operation as a doctrine applicable to the plaintiff’s fall.  For this doctrine to be applicable, the plaintiff would have to prove, among other elements, that the accident occurred in an area affected by the business’s self-service operation.  If the plaintiff was able to demonstrate that the mode of operation rule applied, then “an inference of negligence arises that shifts the burden to the defendant to produce evidence that it did all that a reasonably prudent business would do in a light of the risk of an injury that the self-service operation presented.” 

Here, the Appellate Division agreed with the trial court that the mode of operation doctrine did not apply. There was no evidence that the plaintiff’s fall was produced by any self-service feature of the defendant’s business.  Plaintiff did not attribute the slippery surface to a beverage that another customer might have obtained from a self-service dispenser and then spilled.  Rather, the plaintiff acknowledged that the cup she saw on the floor near the counter did not appear to have any spilled liquid.  Plaintiff attributed the condition of the floor to the “greasy food wrapper” that was on the floor near where she fell.

However, the Appellate Division pointed out that there was no evidence that the wrapper was on the floor because of any self-service activities.  The sandwiches were provided in wrapped condition to customers at the counter as they make payment.  The Court noted that there was “no evidence customers are encouraged to unwrap their sandwiches and eat them while they are standing near the counter.”  Hence, the Appellate Division ruled that the motion judge correctly determined that this lack of a self-service component defeated a mode of operation claim.

Additionally, the Appellate Division found that the plaintiff had no viable cause of action under ordinary negligence principles.  What was missing was plaintiff’s proof of actual or constructive notice of the alleged dangerous condition. 

Based upon the plaintiff’s own testimony, the grease on the wrapper she spotted on the floor was “fresh.”  Plaintiff presented no evidence that a store worker saw the discarded wrapper before plaintiff slipped.  Further, there was no evidence that the “fresh” greasy item had been on the floor long enough to have reasonably placed defendant on constructive notice of a hazard.  Finally, the Appellate Division noted the testimony of the manager “attesting to the store’s regular maintenance practices in endeavoring to keep the floor clear of debris is uncontroverted.”  Thus, the Appellate Division found that the summary judgment was justifiably granted and affirmed the trial court’s dismissal of the case.


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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.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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