Wade Clark Mulcahy LLP

In New Jersey premises liability cases, plaintiffs are generally required to prove that a dangerous condition existed, and that the owner had actual or constructive knowledge of the condition. There are certain exceptions to this burden of proof including the “mode-of-operation” doctrine which creates a rebuttable presumption of negligence where an owner’s mode of business operation creates a dangerous condition. The doctrine creates an inference of negligence which excuses a plaintiff from having to prove notice, shifting the burden to the defendant to show it exercised due care.

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/06/Miguez-v.-Shoprite-of-Kearny.pdf">Miguez v. Shoprite of Kearny</a>,</em> the New Jersey Appellate Division addressed the doctrine in a case where the plaintiff was allegedly injured when she slipped and fell on a metal vent which had fallen off a self-service refrigerator in the deli aisle at a supermarket. Consequently, plaintiff initiated a lawsuit against the defendant to recover damages. Plaintiff’s engineering expert opined that the refrigerator had not been cleaned or serviced in years and store surveillance video showed the vent cover fell after an employee placed items inside.

Defendant moved for summary judgement on the ground plaintiff had failed to establish actual or constructive notice of the condition. Plaintiff argued she did not have to do so because the mode-of-operation doctrine applied or that defendant created the condition that caused her fall. The trial court granted defendant’s motion, holding that plaintiff was required to prove actual and/or constructive notice and failed to do so.

The Appellate Division affirmed in part and reversed in part, first holding that the trial court was correct in refusing to apply the mode-of-operation doctrine. In so holding, the Court recognized that the New Jersey Supreme Court has limited the doctrine to the self-service setting where customers are independently handling merchandise and equipment without the assistance of employees. The Appellate Division found that plaintiff failed to demonstrate the necessary nexus between a defendant's self-service operations and her fall.

However, the Court also found that the award of summary judgment was inappropriate where the evidence provided by plaintiff established the existence of genuine issue of material fact as to whether defendant had actual or constructive notice of the dangerous condition, or whether defendant caused this condition through its own inaction.

The takeaway from the <em>Miguez</em> decision is that plaintiffs should only attempt to assert the mode-of-operation doctrine as a way to shift their burden of proof in premises liability cases in limited situations involving a retailer’s self-service operations. The case also demonstrates that summary judgment as to the issue of notice may be a challenge where there is evidence creating issues of fact.

Thank you to Jordan Davis for his contribution to this post. Please contact <a href="agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.