In Lebrio v. Pier Shops at Caesar’s, 2014 N.J. Super. Unpub. LEXIS 2319 (App. Div. Sept. 25, 2014), the plaintiff Karen Lebrio injured her knee and back when she slipped and fell while walking in a common area at The Pier Shops at Caesar’s in Atlantic City. The jury awarded her $427,000 for her injuries. The issue on appeal is whether the trial judge improperly instructed the jury to apply the mode-of-operation doctrine.
The mode-of-operation doctrine is a limited exception to proving notice in a traditional premises liability negligence case. Under this doctrine, when a substantial risk of injury is inherent in a business’s method of doing business, an injured plaintiff is excused from proving that the business had actual or constructive notice of the dangerous condition that caused the injury.
In Lebrio, after the plaintiff fell, she noticed a clear liquid on the floor, as well as a cup, lid, and straw nearby. The plaintiff did not know how long the liquid had been spilled on the floor. The mall sold beverages in their food court and allowed patrons to walk around the mall and drink them in common areas.
The trial judge found that the mode-of-operation should apply because the mall did not restrict the carrying or consumption of food and drink in the common areas of the mall. Further, about 20 feet from where plaintiff fell, there was a large fountain where patrons gathered to watch a water show.
The Appellate Division pointed out that this doctrine does not apply because a defendant operates a certain kind of business. Rather, it applies based upon the business’s method of operation, which is “designed to allow patrons to directly handle merchandise or products without intervention from business employees, and entails an expectation of customer carelessness.”
Here, the plaintiff established that spills regularly occurred on busy holiday weekends at The Pier Shops in common areas as a result of patrons’ unrestricted consumption of beverages. Thus, the Appellate Division found that the jury was appropriately instructed and tasked with the duty to determine if this doctrine applied and upheld the jury verdict.
