A Capehart Scatchard Blog

Mode-of-Operation Doctrine Applies for Fall at Mall Due to Liquid from a Beverage

By on October 31, 2014 in Blog with 0 Comments

In Lebrio v. Pier Shops at Caesar’s, 2014 N.J. Super. Unpub. LEXIS 2319 (App. Div. Sept. 25, 2014), the plaintiff Karen Lebrio injured her knee and back when she slipped and fell while walking in a common area at The Pier Shops at Caesar’s in Atlantic City. The jury awarded her $427,000 for her injuries. The issue on appeal is whether the trial judge improperly instructed the jury to apply the mode-of-operation doctrine.

The mode-of-operation doctrine is a limited exception to proving notice in a traditional premises liability negligence case. Under this doctrine, when a substantial risk of injury is inherent in a business’s method of doing business, an injured plaintiff is excused from proving that the business had actual or constructive notice of the dangerous condition that caused the injury.

In Lebrio, after the plaintiff fell, she noticed a clear liquid on the floor, as well as a cup, lid, and straw nearby. The plaintiff did not know how long the liquid had been spilled on the floor. The mall sold beverages in their food court and allowed patrons to walk around the mall and drink them in common areas.

The trial judge found that the mode-of-operation should apply because the mall did not restrict the carrying or consumption of food and drink in the common areas of the mall. Further, about 20 feet from where plaintiff fell, there was a large fountain where patrons gathered to watch a water show.

The Appellate Division pointed out that this doctrine does not apply because a defendant operates a certain kind of business. Rather, it applies based upon the business’s method of operation, which is “designed to allow patrons to directly handle merchandise or products without intervention from business employees, and entails an expectation of customer carelessness.”

Here, the plaintiff established that spills regularly occurred on busy holiday weekends at The Pier Shops in common areas as a result of patrons’ unrestricted consumption of beverages. Thus, the Appellate Division found that the jury was appropriately instructed and tasked with the duty to determine if this doctrine applied and upheld the jury verdict.



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 30 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 2020-2023, 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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