A Capehart Scatchard Blog

NJ Supreme Court Grants Certification in Mode of Operation Case

By on October 15, 2021 in Liability with 0 Comments

I had previously reported on the case of Jeter v. Sam’s Club, 2021 N.J. Super. Unpub. LEXIS 919 (App. Div. May 17, 2021) in which the Appellate Division had affirmed a summary judgment ruling, dismissing a personal injury lawsuit arising from a slip on a grape which was sold in a clamshell case by the defendant store. The Appellate Division agreed with the trial court that the mode of operation doctrine did not apply and the plaintiff had failed to prove actual or constructive notice of this particular grape on the floor. The New Jersey Supreme Court has now accepted certification of an appeal to this decision, with the question “Does the mode-of-operation apply to defendant’s sale of grapes?” Jeter v. Sam’s Club, 2021 N.J. LEXIS 822 (Sep. 9, 2021)

While there is an automatic right of appeal to the New Jersey Appellate Division of a civil trial court final ruling, there is no automatic right of appeal of an Appellate Division decision to the New Jersey Supreme Court, except for in limited circumstances, such as a dissent among the judges in the Appellate Division decision.

Unless those limited circumstances apply, to further pursue an appeal above the Appellate Division level, a petitioner must file a notice of petition for certification within 20 days after entry of the final Appellate Division decision and, thereafter, within 10 days, file the petition (its brief). This petition is a request for the Supreme Court to accept this appeal for its consideration.

            Under New Jersey’s court rules, (R. 2:12-4), certification will only be granted if:

  • The appeal presents a question of general public importance which has not been but should be settled by the Supreme Court or is similar to a question presented on another appeal to the Supreme Court
  • If the decision under review is in conflict with any other decision of the same or a higher court or calls for an exercise of the Supreme Court’s supervision and
  • In other matters if the interest of justice requires

It is significant that the Supreme Court accepted this appeal and it could mean that it intends to reverse or, from a defense perspective, the hope would be that the high court will reaffirm the limitations of the mode of operation doctrine and affirm the lower courts’ decisions. According to published statistics in the last few years (2020 statistics are not available yet), the Supreme Court only accepted between 7-10% of petitions for certification.

We will keep you posted when this appeal is decided.  


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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 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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