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Grapes of Wrath: Sam’s Club and the Mode of Operation Rule (NJ)

September 17, 2021

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<p style="text-align: justify;">In a typical slip and fall case, a plaintiff needs to prove that a defendant knew or should have known about a dangerous condition on the premises that caused the plaintiff to fall. However, in certain ‘self-service’ settings, New Jersey has applied the ‘mode of operation’ rule to certain commercial businesses. The mode of operation rule applies when a business permits its customers to handle products and equipment unsupervised by employees. This is a very plaintiff friendly rule.</p>
<p style="text-align: justify;">In <em>Jeter v. Sam’s Club</em>, a New Jersey Appellate Court further limited the application of the mode of operation rule. No. A-0716-19, 2021 WL 1961122, at *2 (N.J. Super. Ct. App. Div. May 17, 2021), In <em>Jeter</em>, plaintiff slipped on a grape in Sam’s Club. Plaintiff failed to prove constructive or actual notice. Therefore, she tried to apply the mode of operation rule, arguing that because customers take their own grapes and can open the grape containers in the store, food shopping in Sam’s Club should be considered a self-service operation.</p>
<p style="text-align: justify;">The Court rejected this argument. While stating Sam’s Club is a self-service operation, Sam’s Club’s grapes were kept in clamshell containers. Opening the grape containers before purchasing was characterized as tampering with the product, and the nature of selling grapes in closed containers did not result in a pattern of conduct or incidents that would support application of the doctrine. The Court expressly stated the mode of operation doctrine applies when “a business permits its customers to handle products and equipment, unsupervised by employers.” Because Sam’s Club did not invite customers to open grape containers in the store prior to purchase, the mode of operation doctrine did not apply.</p>
Thanks to Brendan Gilmartin for his contribution to this post. Please contact <a href="">Heather Aquino</a> with any questions.


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