Plaintiff Lavant Jones slipped and fell inside the vestibule of defendant Rite Aid’s Willingboro store. She slipped on a plastic tablecloth and brochure that had blown off a display table setup by Rite Aid to promote a flu vaccine program. In Jones v. Rite Aid, 2023 N.J. Super. Unpub. LEXIS 1201 (App. Div. July 17, 2023), Rite Aid contended that the trial court should not have charged the jury with the mode of operation doctrine.
The table had a cardboard sign that advertised flu vaccines, brochures, flu vaccine sign-up sheets, and hand sanitizer placed on the tablecloth. Plaintiff contended that, due to her fall, she suffered injuries to her neck, right shoulder, back, wrists and hand.
Plaintiff testified at trial that she walked into the store with her eyes focused straight ahead. She fell because she got tangled up with the tablecloth and the cardboard. She denied seeing the display table near the entrance or the blue tablecloth prior to her fall.
At the trial, plaintiff’s counsel requested that the mode of operation jury charge be given to the jury. Defense counsel did not object. After a four day trial, the jury found that the plaintiff had suffered a permanent injury and awarded her $700,000 in damages, plus pre-judgment interest.
Following the jury award, defendant moved for a new trial, arguing that the jury verdict was “grossly” disproportionate to plaintiff’s injuries and the mode of operation charge was erroneous and resulted in prejudice. As to the mode of operation jury charge, the trial court judge concluded the charge was appropriate because the brochures were part of the “self-service” setup and used for “self-service purposes.” The judge found that there was a nexus between the self-service and touching the items on the display table, the hand sanitizer and the brochures moving around, the sign-up sheets and the blowing wind that allowed for the mode of operation charge.
Upon appeal, the Appellate Division considered whether the mode of operation charge was properly given by the trial court judge. The Court noted that the mode of operation doctrine applies when a “dangerous condition is likely to occur as a result of the nature of the [defendant’s] business, the property’s condition, or a demonstrable pattern of conduct or incidents.”
Further, the Appellate Division noted that “when the defendant’s business has a “self-service method of operation, the defendant is required to anticipate debris falling on the ground because of the carelessness of either customers or employees.” When plaintiff successfully demonstrates that the mode of operation rule applies, “then an inference of negligence arises and shifts the burden to the defendant to produce evidence that it did all that a reasonably prudent person would do in the light of the risk of injury that the self-service operation presented.”
After considering these principles, the Appellate Division rejected defendant’s contention that the trial court made a mistake in charging the jury on mode of operation. The Court found that the trial court judge properly concluded that facts supported the mode of operation jury charge. The trial court judge determined that there was a reasonable factual nexus between the self-service defendant provided, its display items, the heavy hand sanitizer bottle used to prevent items from blowing off the table because of the wind and defendant’s advertisements and brochures for flu shots and vaccines to support the mode of operation charge. Further, the Appellate Division noted in plaintiff’s testimony that she fell because of the blue tablecloth and brochure.
The Court noted that defendant failed to demonstrate that the blue tablecloth and brochure landed on the floor for reasons unrelated to the wind. The store’s personnel testified that they were aware of the wind blowing items off the table. The Appellate Division found that the trial court judge properly determined that “the mode of operation charge was appropriate because the brochure on the display table was part of the self-service setup and used for defendant’s self-service purposes.” Thus, the Appellate Division upheld the trial court’s determination to charge the jury with the mode of operation doctrine.
