I had previously reported on the case of Jeter v. Sam’s Club, 2021 N.J. Super. Unpub. LEXIS 919 (App. Div. May 17, 2021) in which the Appellate Division had affirmed a summary judgment ruling, dismissing a personal injury lawsuit arising from a slip on a grape which was sold in a clamshell case by the defendant store. The Appellate Division agreed with the trial court that the mode of operation doctrine did not apply and the plaintiff had failed to prove actual or constructive notice of this particular grape on the floor. The New Jersey Supreme Court has now accepted certification of an appeal to this decision, with the question “Does the mode-of-operation apply to defendant’s sale of grapes?” Jeter v. Sam’s Club, 2021 N.J. LEXIS 822 (Sep. 9, 2021)
While there is an automatic right of appeal to the New Jersey Appellate Division of a civil trial court final ruling, there is no automatic right of appeal of an Appellate Division decision to the New Jersey Supreme Court, except for in limited circumstances, such as a dissent among the judges in the Appellate Division decision.
Unless those limited circumstances apply, to further pursue an appeal above the Appellate Division level, a petitioner must file a notice of petition for certification within 20 days after entry of the final Appellate Division decision and, thereafter, within 10 days, file the petition (its brief). This petition is a request for the Supreme Court to accept this appeal for its consideration.
Under New Jersey’s court rules, (R. 2:12-4), certification will only be granted if:
- The appeal presents a question of general public importance which has not been but should be settled by the Supreme Court or is similar to a question presented on another appeal to the Supreme Court
- If the decision under review is in conflict with any other decision of the same or a higher court or calls for an exercise of the Supreme Court’s supervision and
- In other matters if the interest of justice requires
It is significant that the Supreme Court accepted this appeal and it could mean that it intends to reverse or, from a defense perspective, the hope would be that the high court will reaffirm the limitations of the mode of operation doctrine and affirm the lower courts’ decisions. According to published statistics in the last few years (2020 statistics are not available yet), the Supreme Court only accepted between 7-10% of petitions for certification.
We will keep you posted when this appeal is decided.
