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Plaintiff Not Entitled to Mode of Operation Charge When Unable to Identify Substance Causing Fall

By on June 22, 2018 in Civil Lawsuits with 0 Comments

Plaintiff Enrico Andricola (“Andricola”) slipped and fell in the cafeteria of Defendant Kennedy Hospital (“Kennedy”). He injured his ankle and sued Kennedy. In Andricola v. Kennedy Univ. Hosp. Inc., 2018 N.J. Super. Unpub. LEXIS 1146 (App. Div. May 16, 2018), the issue was whether the plaintiff was entitled to a mode of operation charge for a fall in a self-service restaurant when he could not identify the substance that caused him to fall.

Andricola would visit Kennedy’s cafeteria for lunch a couple of times a week. On the day of the accident, he slipped on some sort of slippery substance while walking to a table after paying for his food. There was no puddle and he thought the substance more likely grease or wax than a liquid.

Defendant filed for summary judgment, arguing that plaintiff failed to show that Kennedy had actual or constructive notice of the substance on the floor. Defendant also contended that plaintiff was unable to rely on the mode of operation rule because he was unable to offer “any specifics about the substance on which he slipped” which “left him unable to show it ‘was related to a product sold or procured in the cafeteria.’” Plaintiff argued that he was entitled to a mode of operation charge because it was ”’clearly foreseeable and known that customers of [he Hospital’s] cafeteria would bring food and/or drink into the area where Plaintiff fell, as they had to pay Defendant for said food and drink in that very area.’”

The trial judge granted summary judgment, finding that plaintiff could not say what he slipped on and that plaintiff’s evidence was too speculative to permit a mode of operation charge.

On appeal, the Court noted that under the Supreme Court Prioleau case, not every slip in a self-service restaurant merits a mode of operation charge.  To be entitled to the rebuttable inference of negligence, a plaintiff must show a nexus between the self-service operation and the risk of injury in the area where the accident occurred.

The Appellate Division found that, although plaintiff slipped in an area that might be affected by the cafeteria’s self-service operation, between the cashier and the tables, “his inability to do more than guess at the substance he slipped on prevented him from establishing factual nexus between that operation and the dangerous condition.” Plaintiff was unable to establish that he fell on either a wax build up or some type of grease. The Court pointed out that a wax buildup could just as easily occur in a full service set up. Hence, plaintiff was unable to prove that the dangerous condition bore any relationship the defendant’s self-service method of business. Thus, the Appellate Division agreed with the trial court that his proofs were too speculative to permit a mode of operation charge.

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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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