Wade Clark Mulcahy LLP

We have often reported on the evolving "mode-of-operation" jurisprudence in which a plaintiff is relieved of proving notice of a condition on premises where a self-serve business is conducted.  The appeal of this theory to plaintiffs is only too obvious.  Hence, the issue frequently is addressed in slip and fall actions with creative arguments of how the business operation justifies its application.  In the past year, the New Jersey Supreme Court reiterated that it should be limited to self-serve situations.  See <a href="http://blog.wcmlaw.com/2015/09/nj-supreme-court-limits-mode-of-operation/"><em>Prioleau v. Kentucky Fried Chicken, Inc</em></a>. This was followed by an appellate case in which the Court held the line on the doctrine in the face of a leaking milk carton in a grocery store.  See <a href="http://blog.wcmlaw.com/2015/02/no-tears-over-spilled-milk-for-grocery-store-in-mode-of-operation-case-nj/"><em>Novik v. Glass Gardens, Inc.</em></a>  However, recently, the appellate division found that a mode of operation charge should have been given in <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2016/04/Walker-v.-Costco-Wholesale-Warehouse.pdf" rel="">Walker v. Costco Wholesale Warehouse</a>.</em>
In <em>Walker</em>, the plaintiff described slipping on a white "yogurt based product" substance while walking down an aisle of Costco.  At trial, he testified that there had  been a cheesecake sample stand somewhere in the vicinity - although he could not say just how close it was to his fall location.  One store representative testified that although most people eat the bite size pieces whole, some including children may drop the food to the floor.
Although the plaintiff did not expressly connect the yogurt substance to the cheesecake samples, the appellate division felt there was sufficient connection to warrant a mode-of-operation charge.  However, in a new twist, it called for a special interrogatory to have the jury "make a predicate factual determination of whether the substance on which plaintiff slipped came form a food sample offered to customers at a stand within the store."
Since the underlying case had resulted in a no cause on general negligence principles, the court held that the re-trial would be limited strictly to the mode-of-operation theory.  Only if the jury found the requisite nexus to the food sample, would they consider liability further with respect to the rebuttable presumption of notice.  Costco would then have to establish that it took reasonable steps to ensure the safety of its invitees under the circumstances.
This case presents the intriguing potential for special interrogatories to establish correct application of the doctrine.  The <em>Walker </em>plaintiff could not definitively state he fell on cheesecake, yet the court found his testimony sufficient to raise a fact issue for the jury.  It would be wise for defendants to request a special interrogatory to focus the jury's deliberations when faced with similar circumstances of an unidentified substance.
For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.
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