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Mode Of Operation Delineated By NJ Supreme Court

March 31, 2022

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<p style="text-align: justify;">In September of 2021, we reported on an Appellate Division’s decision in <em>Jeter v. Sam’s Club</em> where the Court found that New Jersey’s “mode of operation” rule did not apply to spilled grapes in a closed plastic container in a Sam’s club. <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/03/Jeter.pdf">Jeter</a> v. Sam’s Club</em>, 2021 WL 1961122 (App. Div. 2021). The plaintiff in Jeter appealed and were heard by the Supreme Court. The Supreme Court affirmed in a 4-2 vote. The decision was accompanied by a strongly worded dissent.</p>
<p style="text-align: justify;">The Supreme Court granted leave for the New Jersey Association of Justice (NJAJ) and the New Jersey Food Council (NJFC) to file amicus briefs. NJAJ and plaintiff argued on appeal that the Appellate Division’s decision “effectively shifted the risk of self-service to customers who have no ability or right to control commercial premises” while Sam’s Club and NJFC argued that applying the mode of operation rule in this case would “usher in a seismic shift in the law of premises liability since customers can always open products on store shelves that are packaged in paper, cardboard, glass, or plastic.”</p>
<p style="text-align: justify;">The New Jersey Supreme Court noted that the mode of operation rule began nearly six decades ago and after reviewing the variety of situations in which it has been applied, delineated “several seminal conclusions regarding our mode of operation jurisprudence.”  First, the Court noted that the rule is limited to self-service settings where customers independently handle merchandise without the assistance of employees, including product displays, shelving, and packaging. Second, the mode of operation rule applies in all “areas affected by the business’s self-service operations” where “there is a nexus between self-service components of the defendant’s business and a risk of injury in the area where the accident occurred.” Third, the Court stated that the mode of operation rule “creates a presumption of negligence, excusing the plaintiff from having to show notice and shifting the burden to the defendant to show it exercised due care.”</p>
<p style="text-align: justify;">Applying those principles to<em> Jeter</em>, the Supreme Court found that because the grapes were kept in sealed clamshell containers secured by tape, which the Supreme Court found was “a method that posed virtually no chance of spillage during ordinary, permissible customer handling”, there was no nexus between plaintiff’s fall on grapes and Sam’s Club’s self service sale of grape containers. Therefore, plaintiff could not prove Sam’s Club had notice, and her case against Sam’s Club was rightfully dismissed.</p>
<p style="text-align: justify;">Two justices wrote a strongly worded dissent where they argued “the majority opinion lowers the protection for customers of self-service stores.”  The dissent stated that because Sam’s Club knew that “it wasn’t uncommon” for customers to open sealed grape containers, the burden should be on Sam’s Club to show the due care it exercised in mitigating risks stemming from customer actions. The justices also noted a decision from the Supreme Court of Massachusetts which also applies the mode of operation rule and held that a fall resulting from grapes from an individually sealed bags warranted application of mode of operation.</p>
<p style="text-align: justify;">One procedural issue of interest that the Court did not consider on appeal was the trial court <em>sua sponte</em> turning a motion in limine barring a jury instruction on the mode of operation rule into a motion for summary judgment dismissing plaintiff’s case. While this was not raised on appeal, the Supreme Court in a review of the record stated this violated the NJ rules of civil procedure.</p>
Thanks to Brendan Gilmartin for his contribution to this post. Please contact <a href="mailto:haquino@wcmlaw.com">Heather Aquino</a> with any questions.

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