Plaintiff Talia Pena claimed that, while shopping in a store, she was struck by an unidentified customer operating a motorized shopping cart. While bending over to smell body sprays on a lower shelf near the self-checkout lanes, an unidentified female customer drove a motorized cart into her. The woman did not see Plaintiff because her cart was stacked so high with paper products, they blocked the woman’s vision. The issue in the District Court of New Jersey Pena case (2022 U.S. Dist. LEXIS 215009 Nov. 29, 2022), was whether the mode of operation rule would apply to this accident, which would obviate the need for the Plaintiff to prove that the store had actual or constructive notice of the alleged dangerous condition.
The defendant store filed for a summary judgment, arguing that the mode of operation rule did not apply and, because Plaintiff could not demonstrate actual or constructive notice of the “dangerous condition,” it should be granted a summary judgment dismissal.
The District Court noted the general duty under New Jersey law that “business owners owe to invitees a duty of reasonable care to provide a safe environment for doing that which is within the scope of the invitation.” That duty would include an obligation “to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.” The plaintiff must prove that “the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.”
The District Court also noted that “a plaintiff need not prove actual or constructive notice under the ‘mode of operation’ rule, which applies ‘when a substantial risk of injury is inherent in a business operator’s method of doing business.’” For that rule to apply, “the plaintiff must show there was a ‘reasonable probability’ that the dangerous condition would occur ‘as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.’”
The Court rejected the Plaintiff’s argument that the mode of operation rule should apply to the use of a motorized cart. Merely providing shopping carts as a self-service equipment “does not alone increase the risk of a dangerous condition to warrant application of the mode of operation rule.” The District Court found that the rule would not apply because Plaintiff was unable to produce any evidence to support her position that supplying motorized carts, as opposed to non-motorized shopping carts, “is an aspect of the store’s self-service operation that creates a substantial risk of injury.”
Further, the Plaintiff presented no evidence that the store had actual notice of the alleged dangerous condition. As for constructive notice, Plaintiff had produced no evidence of how long this unidentified customer had over stacked her cart before Plaintiff’s accident. Thus, without the application of the mode of operation rule, and Plaintiff being unable to prove that the store had actual or constructive notice of the alleged hazard, the District Court granted the defendant’s motion for summary judgment, dismissing the lawsuit.
