The “Mode of Operation” Rule’s Applicability in New Jersey

Recently, in a March 17, 2022 decision, the Supreme Court of New Jersey analyzed the “mode of operation” doctrine’s applicability in a situation where the defendant business sold grapes in a closed clamshell container. Jeter v. Sam’s Club, 250 N.J. 240, 243 (2022). The plaintiff, Aleice Jeter, alleged injuries that resulted from a slip and fall on one or more grapes at a Sam’s Club. Id.

The mode of operation doctrine is a judicially created rule which alters the plaintiff’s burden of proof under certain situations. Id. at 252. (citing Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 258 (2015)). The mode of operation rule essentially negates the obligation of the plaintiff to prove either actual or constructive notice and instead establishes a rebuttable inference of negligence on the defendant. Jeter, 250 N.J. at 252 (citing Prioleau, 223 N.J. at 258). The Court created this burden-shifting framework for self-service establishments. Jeter, 250 N.J. at 253.

The rationale is that when an item is sold on a self-service basis, there is a “likelihood that some will fall or be dropped to the floor.” Id. (citing Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966)). Thus, the business must take measures to “protect the customer from the risk of injury that mode or operation is likely to generate” Jeter, 250 N.J. at 253 (citing Wollerman, 47 N.J. at 429). The inference of negligence afforded to the plaintiff under these circumstances could be rebutted by showing the use of due care. Jeter, 250 N.J. at 253 (citing Wollerman, 47 N.J. at 430).

In a prior case before the Supreme Court of New Jersey, the Court analyzed a similar issue surrounding the packaging of grapes. Jeter, 250 N.J. at 253 (citing Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003)). In that case, the grapes were sold in “open-top, vented plastic bags that permitted spillage” and “could easily have fallen out when accidentally tipped or upended in a shopping cart.” Jeter, 250 N.J. at 253 (citing Nisivoccia, 175 N.J. at 565).

The Supreme Court of New Jersey acknowledged that three factors must be met for the mode of operation rule to apply: (1) the defendant operated a self-service business, (2) the location of the incident or fall bore a relationship to the self-service component of the store, and (3) there existed a nexus between the dangerous condition and the defendant’s mode of operation. Jeter, 250 N.J. at 248. The Court found that the first two elements were met, however, the plaintiff failed to show a nexus between her fall on grapes and the defendant’s self-service sale of grape containers. Id. at 256. The Court reasoned that the defendant business decided against using an open-top, vented plastic bag. Id. Instead, the grapes were “packaged and sold in sealed clamshell containers secured by tape.” Id. at 257. This was found to be a method “that posed virtually no chance of spillage during ordinary, permissible customer handling.” Id.

Although the plaintiff argued that the defendant business knew customers would open the grape containers in the store, the Court was not persuaded and declined to find the mode of operation rule applicable to this case. Id. The Court relied on the fact that the defendant business “did not permit customers to open the containers in the store, and that doing so was tampering with the product.” Id.

Thus, the mode of operation rule did not apply to this case, as plaintiff failed to show a nexus between her fall and the dangerous condition alleged to have caused the fall when the item on which she slipped was sold in sealed clamshell containers secured by tape. Id. Therefore, the packaging of products in sealed containers along with a defendant business’ policy of prohibiting tampering could exclude the applicability of the mode of operation rule and be beneficial for defendant businesses in these types of cases.