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Mode of Operation Rule Does Not Apply to Fall Due to Milk Leaking from Milk Carton at Checkout Aisle

By on January 16, 2015 in Blog with 0 Comments

When the mode of operation doctrine applies in a personal injury case, it makes a case more difficult to defend because it eliminates the plaintiff’s burden of proof in establishing that the proprietor had notice of the dangerous condition. In the recent case of Novick v. Glass Gardens, Inc., 2014 N.J. Super. Unpub. LEXIS 2873 (Dec. 12, 2014 App. Div.), the plaintiff argued that the mode of operation rule should apply in the context of a fall due to milk leaking from a milk carton at the checkout aisle of the supermarket.

The plaintiff was shopping at a supermarket and claimed to have slipped on a wet surface of the floor near the checkout aisle and fell onto his right knee. In the supermarket’s incident report, the assistant manager noted a small amount of milk on the floor that was caused by a customer on line that had a gallon of milk on its side, which had leaked onto the floor. The first time he noticed the milk carton was when he was assisting the plaintiff after the fall.

The defendant supermarket filed a motion for summary judgment, arguing that the plaintiff failed to produce any evidence that defendant had any prior knowledge of the wet substance that caused him to fall. More specifically, the defendant argued that the plaintiff failed to present any evidence that the defendant had (1) either actual or constructive knowledge of the existence of the dangerous condition and (2) failed to take reasonable measures to address and correct this dangerous condition.

The plaintiff argued that when the nature of the defendant’s business created the hazard, the inference of negligence exits and it shifts the burden to the defendant to submit evidence of due care. Therefore, the plaintiff contended that the mode of operation doctrine should apply.

After considering the arguments, the trial court judge granted defendant’s motion for summary judgment and dismissed the case.

The Appellate Division considered the applicability of the mode of operation doctrine under the facts of this case. As the court had explained in another recent case “the mode of operation doctrine is an extension of the general principle that when a proprietor creates a dangerous condition, notice, actual or constructive, of that dangerous condition is not required.” The court further noted that a mode of operation charge is appropriate in a self-service area when loose items are reasonably likely to fall to the ground.

Under the facts of this case, however, the Appellate Division ruled that they did not present a rational basis to apply the mode of operation doctrine and relieve the plaintiff from the burden of establishing that the defendant had actual or constructive knowledge of the milk prior to the slip and fall. Ultimately, the court affirmed the 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.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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