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New Jersey Supreme Court Rules that Mode of Operation Doctrine Does Not Apply to Sale of Grapes in Closed Container

By on March 18, 2022 in Liability with 0 Comments

Plaintiff Aleice Jeter sued Sam’s Club due to injuries suffered in its Linden, New Jersey store after she slipped on one or more grapes. Sam’s Club sold its grapes in closed clamshell containers sealed with tape. The case was dismissed by the trial court judge, which decision was affirmed upon appeal to the Appellate Division, but the decision was further appealed to the Supreme Court, which accepted certification. Our office submitted an amicus curiae brief on behalf of Sam’s Club, arguing that the lower court decisions should be affirmed. In Jeter v. Sam’s Club, 2022 N.J. LEXIS 242 (March 17, 2022), in a 4-2 decision, the Supreme Court ruled that the mode of operation doctrine did not apply to the sale of grapes in a closed, taped clamshell container. This decision is a big win for food retailers in limiting liability for injuries suffered due to a fall from a product spilled or dropped from a closed, sealed container or package.

The accident happened in the main aisle of Sam’s Club wholesale store. Plaintiff had been walking away from the checkout area when she realized that she forgot an item. She was halfway back to the fruit and vegetable aisle when she slipped on a grape.

She sued Sam’s Club, arguing that the store was negligent in its sale of grapes. Sam’s Club asserted several defenses, including the lack of either actual or constructive notice of the allegedly hazardous condition, i.e., the loose grapes on the floor.

Just prior to trial, Sam’s Club filed a pre-trial motion, called an in limine motion, asking for a ruling to bar the plaintiff from a mode of operation jury charge. If the trial court judge decided that the mode of operation doctrine did apply, it would have altered the plaintiff’s burden of proof at trial and made it easier for plaintiff to prove her case at trial.

Under New Jersey’s premises liability law, a proprietor owes his invitees [customers] due care under all the circumstances. In a situation in which “an invitee is injured by a dangerous condition on the business owner’s premises, the owner is liable for such injuries if the owner had actual or constructive knowledge of the dangerous condition that caused the accident.” However, a plaintiff is relieved “of the burden of proving actual or constructive notice of a dangerous condition ‘in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.” When this “mode of operation rule” applies, it “gives rise to a rebuttable inference that the defendant is negligent, and obviates the need for the plaintiff to prove actual or constructive notice.”

Based upon prior case law, it has been well established that this doctrine would only be applied in self-service settings, where customers would be independently handling the merchandise without the assistance of employees. This rule would apply to all areas affected by the business’s self-service setting, not just the precise location of the self-service setting. Further, the rule would apply “whether the injury resulted from employee handling, customer negligence, or the ‘inherent qualities of the merchandise itself.’” If the mode of operation rule was determined to apply, it would create “a presumption of negligence, excusing the plaintiff from having to show notice and shifting the burden to the defendant to show it exercised due care.”

The Supreme Court found that the first two elements of the test had been met in that the sale of grapes was part of Sam’s Club’s self-service operation and that the fall had a geographical proximity to the self-service sale of grapes. However, it had an issue with the applicability of the third element, “a reasonable nexus between the self-service activity and the dangerous condition causing plaintiff’s injury.” The Court had to consider “whether the packaging of grapes in closed clamshell containers makes it reasonably foreseeable that grapes will drop on the floor.”

This rule has been applied in falls due to loose produce situations, such as string beans or grapes that were dropped on the floor due to customers handling the product. However, the Supreme Court distinguished those cases from the facts of this case by pointing out that Sam’s Club permitted only the self-service sale of pre-packaged sealed grape containers, not grapes, on display. The grapes were not sold in open-top, vented plastic bags. Sam’s Club did not intend its customers to handle the grapes but, rather, it only intended them to handle the closed grape containers.

The Supreme Court found it compelling that Sam’s Club “elected not to sell grapes in open-top, vented plastic bags – a method we decided creates a reasonably foreseeable risk that grapes will fall to the ground.” The Court pointed out that by selling the grapes packaged in sealed clamshell containers secured by tape, it was a method “that posed virtually no chance of spillage during ordinary, permissible customer handling.” Thus, the Supreme Court found “no nexus between plaintiff’s fall on grapes and Sam’s Club’s self-service sale of grape containers.”

The Court further noted that it found “unpersuasive plaintiff’s argument that Sam’s Club knew its customers occasionally opened the grape containers in store.” The Court noted that Sam’s Club’s sale of grapes in secure packaging posed no foreseeable risk that grapes would end up on the floor. Further, the store manager had testified that the store did not permit its customers to open the containers in the store and that doing so constituted tampering with the product.

Thus, the Supreme Court held that “the mode of operation rule does not apply to the sale of grapes in closed clamshell containers.” Because the plaintiff had not appealed the lower court ruling that there was no actual or constructive notice of the grapes on the floor, without the application of the mode of operation doctrine, the plaintiff was unable to prove negligence against Sam’s Club. Hence, the Court affirmed the lower court’s rulings and the case was dismissed.

This decision is a big victory for retailers, food and non-food retailers. Had the Supreme Court expanded the mode of operation rule to injuries that resulted from falls due to spillage or products dropped by customers from closed and sealed containers, it would have vastly expanded the application of this rule to almost every product sold in the store. It would have made these cases almost impossible to successfully defend, once the plaintiff’s notice requirement was eliminated.

Especially food retailers should be breathing a sigh of relief that our Supreme Court has made clear that this rule does not apply when the customer is handling a product’s sealed container, and not the product itself.  Even knowing that customers occasionally opened the containers (“tampered” with them), did not trigger the application of the mode of operation rule.

Packaging was key here to prevent the application of this burden shifting rule. Retailers should consider its packaging used and consider packaging its produce and other “loose” items in closed, sealed containers to prevent a court from applying the mode of operation rule. Without that doctrine being applied, a plaintiff will need to prove that the store had actual or constructive notice of the product being on the floor.


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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 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.

“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.

*No aspect of this advertisement has been submitted to or approved by the Supreme Court of New Jersey.


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