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Mode of Operation Doctrine Does Not Apply to Fall on a Grape Sold in Clamshell Case

By on May 21, 2021 in Liability with 0 Comments

Plaintiff Aleice Jeter slipped and fell on a grape in the aisle of the defendant Sam’s Club East, LP, Linden store and filed a lawsuit to recover damages for her neck and back injuries.  She relied upon the mode of operation doctrine, which she contended excused her from establishing that the defendant had actual or constructive notice of any dangerous condition at the store. In Jeter v. Sam’s Club, 2021 N.J. Super. Unpub. LEXIS 919 (App. Div. May 17, 2021), the Appellate Division was asked to decide whether the mode of operation doctrine was applicable when the defendant store sold the grapes in tabbed, interlocking clamshell cases that were further secured by tape.

The applicability of the mode of operation doctrine was resolved before the trial in this matter based upon an evidentiary hearing, called a Rule 104 hearing.  Based upon that hearing, the trial court concluded that the mode of operation doctrine did not apply.  Further, the court evaluated the plaintiff’s claim under negligence principles and dismissed her complaint after determining that the plaintiff had failed to establish that the defendant store was either actually or constructively aware of the presence of grapes on the aisle floor prior to her fall.

In this case, the plaintiff, was shopping in the grocery main aisle of the defendant store and slipped on a grape.  The incident was captured on a video surveillance camera and documented in a customer statement report prepared by the defendant’s assistant store manager.

The assistant store manager testified at the Rule 104 hearing that any grapes sold by the defendant would come in a clamshell container and be taped closed.  Further, he testified that the grapes were delivered to the store, already taped in the plastic clamshells from a distribution center in Pennsylvania and the defendant store did not sell the grapes in any other containers.   He did admit that on occasion, customers improperly “tampered with” the closed and taped clamshell packaging to taste the grapes which was a practice that the defendant’s employees “frowned upon.”  He was not certain grapes were among the free food samples occasionally provided to customers. 

Plaintiff also testified at the hearing and she stated that she shopped at the Linden store monthly.  She testified that she had previously observed loose grapes in the store and saw store employees hand out free samples of grapes.  She also testified that she saw people opening the grape packages “plenty of times.”

Based upon the testimony of both the plaintiff and the assistant store manager, the trial court determined that the mode of operation doctrine was inapplicable to the defendant store’s sale of grapes.  The court found that the defendant was not deliberately selling the grapes in a loose form and that the knowledge that customers occasionally opened the clamshell case to sample grapes did not circumvent the defendant’s mode of operation, which the court found was “targeted towards safety.”  Further, the court concluded that there was no evidence that the defendant had actual or constructive notice regarding how long this particular grape was on the floor and, accordingly dismissed the complaint.

Upon appeal, the plaintiff Jeter argued that the trial court made a mistake in failing to apply the mode of operation doctrine to the facts of her case.  Specifically, she contended that the defendant’s knowledge that customers routinely opened the clamshells to eat grapes and the practice of handing out loose grapes on at least some occasions established a nexus between the dangerous condition and defendant’s method in selling grapes.  The Appellate Division disagreed with this argument.

The Appellate Division pointed out that as a business owner, the defendant owed the plaintiff “a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation.”  Further, the defendant had an affirmative duty “to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.”  The Appellate Division also noted that to establish this breach of duty the plaintiff must demonstrate “that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”

Under New Jersey law, however, the parties’ respective burdens would substantially change if the mode of operation doctrine applied.  This doctrine addresses circumstances in which “as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.”  When this rule applied, it would give rise to a rebuttable inference that the defendant is negligent and the plaintiff would not need to prove actual or constructive notice.  The defendant would then be obligated to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.

The Appellate Division also noted that the mode of operation doctrine has never been expanded “beyond the self-service setting, in which customers independently handle merchandise without the assistance of employees or may come into direct contact with product displays, shelving, packaging, and other aspects of the facility that may present a risk.”  To invoke the doctrine, a plaintiff must prove that the dangerous condition arose from the defendant store’s self-service operation.  The plaintiff must establish a nexus between the self-service components of the defendant’s business and the risk of injury in the area where the accident occurred. 

Here, the Appellate Division noted that the defendant operated a self-service business that required customers to independently handle the goods they sought to purchase and the location of plaintiff’s fall occurred in the grocery main aisle. The location of her accident would bear a relationship to the self-service component to defendant’s business.  However, the court found that the record failed to establish a nexus between the dangerous condition and defendant’s mode of operation.  The defendant’s mode of operation was to sell the grapes in sealed clamshells.  The defendant “frowned upon” customers who undid the tape to open the containers before purchasing the grapes and characterized this practice as “tampering” the product.  Thus, the Appellate Division found that the self-service component of defendant’s business was dissimilar to a situation where a customer would simply be handling loose grapes. 

The Appellate Division agreed with the trial court that the fact that the defendant store knew certain customers tampered with the clamshells or that they were designed to be opened and closed did not mandate a different result.  The Court noted that many products were commonly sold in grocery stores or designed to be resealed between uses, such as cookies or other snacks.  Under the mode of operation doctrine, it only applies when a business permits its customers to handle the products and equipment unsupervised by employees.  The Appellate Division was satisfied “that defendant’s actions, or knowledge that certain customers improperly opened the closed containers, did not invite customers to act in such a manner.”

Further, the evidence regarding defendant’s practice of providing loose, free samples of grapes to customers, which occurred at some indeterminate point and at some unknown location in the Linden store, did not provide any reasonable inference to be drawn to support the conclusion that grapes were given out on the day or even the week of plaintiff’s fall.   Thus, the Court found that it would be entirely speculative to conclude that there was any inference of a nexus between providing sampled grapes and plaintiff’s fall.  The Court stated that there would be no reasonable factual basis for the trial court to charge the mode of operation doctrine based upon this argument.

Hence, the Appellate Division found that the mode of operation doctrine did not apply and that the plaintiff’s claim should be evaluated under traditional negligence principles.  The plaintiff’s attorney acknowledged that there was no evidence that the defendant had actual notice of grapes in the aisle of the Linden store where the plaintiff fell. 

Plaintiff argued that the defendant had constructive notice because the store had an in-store surveillance video and it did not “depict any inspection, cleaning, or measures performed by defendant’s employees in the area where the incident occurred.”  Further, she contended that defendant did not provide any evidence that the store took any measures to ensure the safety of its premises by performing regular inspections, training of its employees, etc. 

However, the Appellate Division noted that it is the plaintiff’s burden to prove negligence and that it is never presumed.  The mere existence of an alleged dangerous condition is not constructive notice of it.  The plaintiff must prove that “the condition existed for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.” 

Here, the plaintiff proffered no evidence showing defendant’s employees knew or should have known before plaintiff’s fall that the grapes were in the main aisle’s floor.  There was no evidence about how long the grapes were there, such as through eyewitness testimony or any aged characteristics of the grapes, to indicate the amount of time defendant had to discover and remedy this situation.  The surveillance video that plaintiff relied upon showed many people walking in the same area prior to the plaintiff’s fall but that did not permit an inference that grapes were on the ground at all, let alone for any length of time.

Hence, the absence of evidence of “actual or constructive notice” was fatal to the plaintiff’s claim of premises liability.  Thus, the Appellate Division upheld the trial court’s decision to dismiss this lawsuit.


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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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