Plaintiff, Samira Aly, was a customer at defendant A&H Bagels. While walking to throw out her trash, she fell and suffered a serious injury. Both deposition and video surveillance footage showed a brown substance on the floor near where she fell. The issue in Aly v. A&H Bagels & Deli, Inc., 2023 N.J. Super. Unpub. LEXIS 695 (App. Div. May 8, 2023) was whether the trial judge made a mistake in refusing to charge the “mode of operation” standard in considering the summary judgment motion filed by the defendant A&H.
Unfortunately, both the incident report and a log of inspections to the premises was lost in a subsequent fire. However, Aly’s fall on the brown substance was documented through A&H Bagels’ surveillance footage but the footage was taken into police custody after the fire and never viewed by Aly.
At the trial court level, the defendant A&H filed a motion for a summary judgment dismissal, which was granted. Plaintiff Aly appealed, arguing that the trial court failed to apply the appropriate “mode of operation” standard and, even absent the applicability of the mode of operation standard, the plaintiff argued that A&H Bagels should have had constructive notice of the brown substance on the floor near the trash receptacle.
While in a typical premises liability case, a plaintiff must prove that the defendant had notice of the alleged dangerous condition that caused the accident, when the mode of operation rule applies, it creates an inference of negligence and the burden shifts to the defendant to negate the inference by submitting evidence of due care. When this doctrine applies, it relieves the plaintiff of proving that the defendant had actual or constructive notice of the dangerous condition. Instead, it requires a defendant to show that it did “all that a reasonably prudent man would do in light of the risk of injury the mode of operation entailed.”
The Appellate Division disagreed with the trial court’s failure to apply the mode of operation standard and found that it should have been applied. The Court noted that “[l]ike the businesses previously found to have created the hazard by their self-service nature, A&H Bagel’s format requires courts to contemplate its duty through a mode of operation standard as well.” Further, the Appellate Division found that the trial court failed to adhere to the summary judgment standard of giving all reasonable inferences to the plaintiff when it granted A&H Bagel’s motion.
The Court noted that the customers at the bagel shop purchased sandwiches, coffee in cups, and juices in closed containers at the counter and then carry their food and beverages to their seats to eat before disposing of their trash in the receptacle. The customers wait on themselves after being served at a counter. The Appellate Division noted that “this is exactly the situation where the burden should shift to the defendant to show that they acted reasonably considering this specific business format.” Further, the Court held that “[t]he dangerous condition caused by the brown substance near the trash receptacle was a foreseeable risk posed by the bagel shop’s mode of operation.” Hence, the Appeals Court found that the mode of operation rule did apply to this scenario.
The Appellate Division further reversed the trial court’s ruling that, even if the mode of operation rule did apply to this setting, A&H Bagels had met its burden because “they did all that a reasonably prudent shop would do considering the risk of injury the mode of operation entailed.” The Appellate Division found that the trial court improperly concluded that A&H Bagels took all reasonable actions. The Court found that there were genuine issues of material fact that only a jury could decide. It was disputed exactly how much of the brown substance was on the floor, whether the brown substance caused the fall and also how soon before the fall were their inspections and garbage changes. It should have been up to the jury to decipher whether defendant acted reasonably no matter whose burden it becomes to prove that.
Therefore, the Appellate Division reversed the trial court’s summary judgment dismissal. It found that the mode of operation standard should have been applied. Further, assuming it is applied, the jury must decide whether the defendant acted reasonably based upon its “mode of operation” to protect its invitees from the alleged dangerous condition, i.e., the brown substance on the floor.
