A Capehart Scatchard Blog

Supreme Court Reaffirms that Mode of Operation Rule of Limited Application

By on October 2, 2015 in Blog with 0 Comments

Typically, in a personal injury suit alleging bodily injury in a premises liability case, the plaintiff would need to prove that the business owner had actual or constructive notice of the dangerous condition that caused the accident. If the “mode of operation” rule applies, the plaintiff is relieved of this burden and is entitled to an inference of negligence. In Prioleau v. Kentucky Fried Chicken, 2015 N.J. LEXIS 957 (Sept. 28, 2015), the New Jersey Supreme Court was asked to decide if this rule should be applied to the defendant Kentucky Fried Chicken’s operations.

This rule has been applied in self-service settings in which it is reasonably foreseeable that customers will interact directly with products or services, unassisted by the defendant or its employees. The rationale is that this business model, that encourages self-service on the part of the customer, is of benefit to the business, but creates a risk of harm to the customer. Because this business practice creates an inherent danger to the customer, the plaintiff does not need to prove that the business owner had actual or constructive notice of the dangerous condition.

In Prioleau, the plaintiff had stopped to have dinner at the KFC with her children. It was raining outside. After entering the restaurant, the plaintiff headed to the restroom. As she approached the restroom, she slipped and fell on what felt like a greasy, wet floor. As a result, she suffered a back injury and sued KFC for her injuries.

At trial, the trial court judge charged the jury with the mode of operation rule, based upon the plaintiff’s argument that oil may have been tracked in from the restaurant kitchen to the floor near the restroom. Thus, the plaintiff was relieved of the burden to show that the defendant had notice of the unsafe condition.

The defendant appealed and the Appellate Division reversed and remanded for a new trial. However, one of the judges dissented, giving the plaintiff an appeal as of right to the Supreme Court.

The Supreme Court agreed with the majority opinion of the Appellate Division. It found that the mode of operation rule applies only in situations where the customer serves himself or herself or otherwise directly engages with products or services unsupervised by an employee. Here, there was no evidence that the plaintiff’s accident bears any relationship to any self-service component of this business. Even if it was caused by the employees tracking oil and grease from the kitchen to the restroom area, it resulted from the preparation of food in the kitchen, an area off limits to patrons, and a component of the business in which customers played no part.

Because plaintiff’s theories of liability did not involve a self-service operation, it did not merit a mode of operation charge. Thus, defendant KFC was entitled to a new trial on the issue of liability.



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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