As a general premise, business owners must use reasonable care to provide a safe place for their invitees. This duty requires them to discover and eliminate dangerous conditions. However, in order to prove negligence of a business for a condition on its property, a plaintiff must show that the business owner had notice that a dangerous condition exists. Proof of notice, actual or constructive, is thus an essential element of plaintiff’s case – except when the business’s mode of operation is likely to result in dangerous conditions. In such cases, the plaintiff is relieved from proving notice.
Mode of operation has been applied in a variety of scenarios involving self –serve items in groceries or other businesses. Thus, where a customer slips on a dropped grape or piece of lettuce in a produce aisle, there is no need to prove notice. The same holds true when a cafeteria patron slips on spillage at a self serve station. Our courts even applied mode of operation when IKEA permitted its customers to use self serve string and a customer slipped on loose string that was not properly coiled after customer use.
So, of course, plaintiffs would like to extend mode of operation to broader issues to absolve them of the need to prove notice. Recently in <a href="http://njlaw.rutgers.edu/collections/courts/appellate/a4241-11.opn.html"><em>Cashour v. Dover Parkade, LLC,</em></a> a clever attorney attempted to use this theory in connection with a slip and fall outside a shopping plaza. The plaintiff alleged that she fell on a plastic bag. She attributed it to an overflowing garbage can. However, she had no factual support for specifically where the bag came from or how long it had been present prior to her fall.
The Appellate Division had no trouble distinguishing this case from the traditional mode of operation case. It noted that there was no direct causal link between the plastic bag and the store’s business operations. It was, in fact, entirely unclear where the bag originated. More particularly, the court was unpersuaded that the defendants should have been charged with anticipating hazardous overflow from the trash cans such as to remove the plaintiff’s proof burden on notice.
With insufficient proof of notice and no application of mode of operation, the court affirmed summary judgment that had been granted to the defendants.
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