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Court Finds That Mode of Operation Doctrine Properly Charged for Slip and Fall Accident

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.

Owner of Two-Family Home Found Not to Be Liable for Plaintiff’s Injury From Fall on Public Sidewalk in Front of Home

Plaintiff Shneequa Easterling had been walking on a public sidewalk abutting defendant’s home when she slipped and fell on ice, injuring her neck and back, as well as her right ankle.  She filed a lawsuit against the defendant homeowner, George Johnson, who owned the two-family home abutting the public sidewalk.  The issue in Easterling v. Johnson, 2023 N.J. Super. Unpub. LEXIS 905 (App. Div. June 9, 2023) was whether the defendant homeowner could be liable to the plaintiff for the injuries incurred while walking on the public sidewalk abutting his two-family home. 

Plaintiff contended that the defendant was operating a multi-family rental property and was negligent in failing to warn pedestrians about the ice that existed on the sidewalk next to his property.  She claimed that he failed to keep the premises in a safe condition.

At the trial court level, the defendant moved for a summary judgment, arguing that as a residential homeowner, he had no duty to clear snow and ice from the sidewalk abutting his property.  The trial court judge agreed with the defendant and found that his property was residential in nature and, thus, he had no duty to remove snow or ice on the public sidewalk.

This order was appealed to the Appellate Division.  On appeal, the plaintiff argued that the order granting summary judgment should be reversed because defendant could be held liable for the icy condition of the sidewalk abutting his property, even if it was residential.  She contended that he could be liable if, in clearing the ice and snow from the sidewalk next to his property, he increased the hazard by introducing some element of danger.

The Appellate Division noted prior case law that “absent negligent construction or repair,” the residential property owner “does not owe a duty of care to a pedestrian injured as a result of the condition of the sidewalk abutting the landowner’s property.”  On the other hand, commercial property owners do have such a duty to maintain the sidewalk.

The Court found that there was no evidence in the record that the defendant had made any repairs or otherwise created a dangerous condition on the sidewalk next to his home prior to plaintiff’s fall.  There was also no proof that the defendant’s property was primarily commercial in nature.  The record was devoid of evidence that the defendant had utilized his property for any purpose in the past 40 years as other than his own residence.  There was no evidence that he had rented or generated a profit from any portion of the property.  Thus, the record fairly established that the nature and purpose of defendant’s owner occupied property was primarily residential and not commercial.

Thus, the Appellate Division agreed with the trial court’s order granting summary judgment and affirmed the decision. 

Appellate Division Finds that “Dirty” Substance on Floor Does Not Constitute Constructive Notice for Slip and Fall in Pharmacy

By: Eric Richwine, Law Clerk
Edited by: Betsy G. Ramos, Esq.

Plaintiff Michael Racine slipped and fell while walking inside defendant Rite Aid’s Irvington, New Jersey, store.  He suffered a fractured left tibia, resulting in him filing a complaint against the defendant, in which he alleged negligent maintenance of and failure to conduct reasonable inspections of the premises.  The trial judge had granted summary judgment to the defendant on the basis that the plaintiff failed to demonstrate that the defendant had actual or constructive notice of any “dangerous condition” on the premises.  The issue on appeal in Racine v. Rite Aid Pharmacy, 2023 N.J. Super. Unpub. LEXIS 959 (App. Div. June 14, 2023) was whether constructive notice can be inferred by the presence of dirt in a condition.

Plaintiff testified that he had not noticed anything on the floor as he entered the store looking to purchase hair gel, which was on a shelf close to the entrance.  He reported that he soon after fell, and after which, he noticed a “dark greasy spot” on the floor which he believed to be a mixture of dirt with either hair gel or grease.

On appeal, the plaintiff contended that the trial judge “drew all inferences against plaintiff rather than the reverse” and that he sufficiently established that defendant had “constructive notice of the condition that caused [plaintiff] to slip.”  The Appellate Division first considered whether the plaintiff was relieved of the burden to prove constructive notice via the mode of operation exception, i.e., by demonstrating that the dirty substance here was likely to occur as the result of the nature of Rite Aid’s business.  The Court quickly determined that this was not the case.

The Appellate Division then turned to whether or not a jury could find that defendant had constructive notice of a dangerous condition.  Plaintiff contended that, because “the substance appeared dirty,” the factfinder could logically infer that “the substance had been on the floor for a significant time.”  Plaintiff supported this argument by citing the Court’s decision in Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507 (App. Div. 1957), in which a plaintiff slipped and fell just inside an entrance of a store on an “all wet” and “all dirt” floor, which the Court declared was sufficient to put the defendant store on constructive notice.  

However, the Appellate Division distinguished the facts in Parmenter to those before the Court here; namely, the dirty, wet floor in the defendant store of Parmenter was the result of an all-morning rainstorm that was continuously tracking in dirt and rain into the store upon the opening and closing of its doors.

Here, there was no such storm.  The Court emphasized that, unlike in Parmenter, the plaintiff here could not identify the cause or duration of the “dangerous condition” of the dirty substance on the floor of the store.  Further, the Court rejected the contention that the presence of “dirt” permitted a speculative inference that the substance had been on the floor for an adequate period of time as to place the defendant on constructive notice.

As such, the Appellate Division found that the plaintiff failed to meet his burden of demonstrating that defendant was put on constructive notice of the dirty substance on its store’s floor, nor was he able to successfully argue that a jury could infer such. Therefore, the Court affirmed the trial judge’s granting of defendant’s motion for summary judgment.

Municipal Parking Authority Found to Be Immune From Tort Liability for Claim Resulting From Its Snow Removal Activities

Plaintiff Nancy Valdez was at a multi-story parking garage in Union City, owned by the Union City Parking Authority (UCPA), on December 11, 2017.  She was at the garage to renew her residential parking pass.  Due to a prior snowstorm, snow piled on an upper deck melted and re-froze on the downhill parking ramp.  As she walked on the parking ramp, she slipped and fell.  The issue in Valdez v. Union City Parking Authority, 2023 N.J. Super. Unpub. LEXIS 954 (App. Div. June 13, 2023) was whether the UCPA was immune from liability for injuries resulting from snow removal by a public entity.

The snowstorm, two days earlier, had left about four inches of snow on the ground.  UCPA employees removed the snow and, on the top floor, where the UCPA Administrative Offices were located, they piled it on the sloped deck uphill from the incident site. 

In the days following the storm, due to temperature fluctuations, melt/refreeze conditions occurred.  Because the top floor of the garage had no roof, the snow piled by the UCPA employees melted and the resulting water subsequently froze. 

On the day of the accident, Nancy was there to renew her residential parking pass.  She parked her car on the street and took an elevator to the top floor offices. 

She left the offices of the UCPA and walked along the top floor downhill parking ramp, attempting to exit the garage.  As she walked down the ramp, she slipped and fell on ice and suffered physical injuries.

Thereafter, she sued the Union City Parking Authority to recover for her injuries.  She claimed that the UCPA’s negligence resulted in a dangerous condition at the parking garage. 

After discovery concluded, UCPA filed for a summary judgment, arguing that plaintiff’s claims were barred by the common law immunity from liability for injuries resulting from snow removal by a public entity.  The trial court granted the UCPA’s motion, dismissing the complaint.

Plaintiff appealed to the Appellate Division and argued that the exception to the common law snow removal immunity established for public housing authorities in Bligen v. Jersey City Housing Authority should be applied to the facts in this case.  However, the Appellate Division rejected that argument.

The Court noted that the common law snow removal activities immunity survived the passage of the Tort Claims Act.  The rationale behind this immunity was that: “if liability were to be imposed on a public entity for injuries caused by its snow removal, it would be required to broom sweep the areas from which it removed snow.”  Further, the Court noted that the high cost of such an undertaking could make the expense of any extensive program of snow removal prohibitive.  Because “the public is greatly benefitted even by snow removal which does not attain the acme of perfection of “broom swept streets,” a public entity would not be held liable for injuries arising from its snow removal activities.”

The Bligen decision, dealt with a slip and fall at the Jersey City Housing Authority, when the plaintiff slipped on ice and fell as she stepped off curb into the parking lot of the complex.  In the Bligen case, the New Jersey Supreme Court declined to extend common law snow removal immunity to the Housing Authority.

However, the Appellate Division noted that the Bligen case was a narrow exception to the snow removal immunity. The rationale of the Supreme Court, in not applying the immunity in the Bligen case, was that municipal landlords should be responsible for the reasonably foreseeable consequences of their actions.

Here, the Bligen case did not apply because the Parking Authority was not found to be the equivalent of a public housing authority.  Absent a contrary holding by the Supreme Court, the Appellate Division declined to extend the holding in Bligen to claims raised against any entity other than a public housing authority.

Hence, the Appellate Division affirmed the trial court decision, dismissing the lawsuit against the Union City Parking Authority.

Mode of Operation Found to Apply to Accident Caused by Brown Substance on Floor of Bagel Store

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. 

Macy’s Found Not Liable for Slip and Fall Injury Due to Plaintiff’s Failure to Identify Dangerous Condition

Plaintiff Irina Galperin suffered an injury when she fell at Macy’s, located in the Garden State Plaza Shopping Center in Paramus, New Jersey, upon stepping from a tile walkway to a carpeted area.  While she initially claimed that she fell due to liquid on the floor, she later claimed that she fell when her foot got caught on the edge of the carpet which bordered the tile walkway inside the Macy’s store.  The issue in Galperin v. Macy’s, 2023 N.J. Super. Unpub. LEXIS 589 (App. Div. Apr. 19, 2023) was whether plaintiff would be able to maintain a negligence claim against Macy’s in light of her failure to identify the exact dangerous condition which caused her fall and the lack of an expert to identify a breach of duty in the design of the flooring.

In answers to Interrogatories, plaintiff certified “she was caused to slip and fall due to a dangerous condition, namely liquid on the floor.”  However, in her deposition, she disavowed this response and stated that she was unable to identify anything on the floor that caused or contributed to the fall.  She submitted an amended Interrogatory answer, stating that when she fell, the front of her right foot got caught on the edge of the carpet which bordered the tile walkway.  Further, she testified at her deposition that the incident occurred after she stepped off the escalator and walked toward the store’s exit.  She stated that there were too many people in the aisle and, while trying to go around the customers, she fell on the border of tile and carpet and struck a table display with a metal frame.  As for the cause of her fall, she simply stated it was the border between the tile and carpet. 

At the trial court level, Macy’s filed a motion for a summary judgment dismissal, arguing that plaintiff failed to identify a dangerous condition that caused her accident and she did not establish Macy’s possessed actual or constructive notice of any such condition.  Further, to the extent that plaintiff was maintaining that the purported height differential constituted a hazardous condition, Macy’s argued that “any claim was beyond the ken of the average juror thereby requiring expert testimony, which she failed to provide.”

The trial court agreed with Macy’s that plaintiff had failed to offer any proof of a dangerous condition.  The court rejected plaintiff’s argument that “the mere existence of a transition from tile to a carpet, without even some kind of torn or ripped carpet, broken tiles, or misleveled surface, constituted a dangerous condition.”  Further, plaintiff had failed to submit any factual or expert proofs that the flooring violated some code or regulation or standard that a reasonably prudent business owner would meet.  The court agreed that a claim that the border between the tile and the carpet created a defect required expert testimony. 

Hence, the trial court granted the summary judgment as to Macy’s.

Upon appeal, the plaintiff made the same arguments to the Appellate Division that were made to the trial court.  However, the Appellate Division rejected those arguments and agreed with the trial court and noted that the “mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence.”  The Court noted that the plaintiff had failed to identify anything related to the tile or carpet that caused her to fall.  The vague statements that her foot caught on the edge of the carpet and something between the tiles and the carpet caused her to fall were found to be insufficient to establish a dangerous condition.  Further, the Appellate Division agreed that an expert would be necessary to establish the existence of a dangerous condition that the transition area was dangerous due to a design or installation defect.

Thus, the Appellate Division affirmed the trial court decision, stating that “[i]n light of plaintiff’s inability to identify the circumstances of her fall, expert testimony was necessary to establish the area where she fell was in some manner dangerous, if for no other reason than to exclude other potential causes of the accident and avoid pure speculation by the factfinder.” 

Plaintiff’s Failure to Prove Property Owner Had Actual or Prior Notice of Ice on Steps Merited Dismissal of Lawsuit

Plaintiff Karimah Sharif slipped and fell, allegedly on ice, while walking down the exterior steps of the rear entrance of defendant’s commercial building.  On the morning of the accident, plaintiff had visited her son who had an office in the building and did not notice any ice on the steps.  The issue in Sharif v. Dominant Domain, LLC, 2023 N.J. Super. Unpub. LEXIS 368 (App. Div. Mar. 14, 2023) was whether the plaintiff was entitled to pursue a personal injury lawsuit against the defendant commercial property owner when she did not recall seeing ice, nor was plaintiff able to prove that the defendant property owner had actual or constructive notice of the ice on the steps.

While the plaintiff did not notice any ice while walking up the steps upon her arrival, when she left the building, she started going down the steps and ended up on the ground.  She testified at her deposition that she saw ice on the bottom steps but could not recall exactly how many of the five steps she traversed had ice.  Plaintiff could not recall seeing ice on the top couple of steps, which she claimed she slipped upon. 

It did not snow or rain on the day of the accident and plaintiff could not recall the last time it had snowed.  The owner of the building testified at a deposition that there was no precipitation on the steps, although there were leftover piles of snow from the previous storm.  Based upon the owner’s observation immediately after the accident, she did not observe any ice on the steps.

Further, the owner and her operations manager examined the steps each time they entered or exited the building.  The stairs were inspected up to 20 times a day.  However, on the day of the incident, the owner had entered the building only once before plaintiff’s fall.

The defendant property owner filed for a summary judgment, claiming that there was no evidence to demonstrate that it possessed actual or constructive notice of the alleged dangerous condition on the stairs.  The trial court judge rejected plaintiff’s claim and found that plaintiff had failed to prove that the defendant had actual or constructive notice of the dangerous condition.  Further, the trial court noted that the plaintiff failed to present an expert liability report to establish a standard of care regarding snow removal protocols and noted that the stairs were inspected several times a day.

Upon appeal, the Appellate Division agreed that the plaintiff was required to prove that the defendant had actual or constructive notice of an alleged dangerous condition to pursue a negligence claim.  Further, the Appellate Division noted that “[a] defendant may counter with evidence it conducted regular inspections of the site where the injury occurred.”  To prove constructive notice, the plaintiff had to prove that the condition existed “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.” 

The Appellate Division agreed with the trial court’s conclusion that there were no facts to support that the defendant proprietor had actual or constructive notice of an icy condition prior to plaintiff’s fall.  The Court noted the plaintiff’s lack of recall of seeing ice on the steps she fell upon either prior or after her fall.  She failed to offer evidence of weather conditions that could have proven ice accumulated on the steps between the time she went into the building in the morning and at the time she exited in the afternoon.  Further, she could not recall the last time it had snow or precipitated.

The Appellate Division noted the undisputed testimony that the proprietor and her staff frequently checked the exterior pathways around the building.  Further, it pointed out that the proprietor did not see any ice or precipitation in this area before or after the accident.  Thus, plaintiff was unable to demonstrate that the defendant proprietor had actual or constructive notice of an icy condition on the steps. 

Finally, the Court noted that to the extent plaintiff attempted to claim a structural defect of an adjacent gutter which may have dripped and caused a patch of ice, she was required to proffer an expert report “about the construction, design, condition, or maintenance of the gutter or its placement in relation to the stairs.”  Hence, the Appellate Division found that plaintiff failed to establish a prima facie case of negligence and held that the defendants were entitled to a summary judgment as a matter of law.  Thus, the Court affirmed the trial court’s decision to dismiss the case.

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