Most recently, the Appellate Court, once again, ruled that the plaintiff must identify the substance and that there was a nexus between the substance and items sold within the store. Sara Quejada v. Shop Rite, A-0923-19T3.

On July 6, 2018, plaintiff slipped and fell close to where patrons pay. Plaintiff did not see anything on the floor, but after the fall plaintiff’s clothing was wet. Plaintiff did not know the source of the water and plaintiff’s daughter was in front of her so she did not see the accident. While photos in the record showed plaintiff on floor in supermarket and some liquid is also seen on the floor. However, plaintiff didn’t know what the substance was or whether it caused her fall. Defendant filed summary judgment motion which the Judge granted based on the fact that plaintiff must prove defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Citing Nisivoccia v. Glass Gardens Inc., 175 N.J. 559, 563 (2003).

Plaintiff argued that the mode of operation rule relieved plaintiff of proving actual or constructive notice and gives rise to a rebuttable inference that the defendant is negligent. The most cited case in using the mode of operations is Wollerman v. Grand Union Stores, Inc. 47 N.J. 426, 429 (1966), where plaintiff fell on a string bean in the produce aisle. In Wollerman, the Court held that when the item sold is in an open bin, there is likelihood that some will fall or be dropped on the floor and, therefore, the defendant must do what is reasonably necessary to protect the customer from the risk of injury that the mode of operation is likely to create. Id.

However, the Court requires the plaintiff to prove that what she fell on was an item sold within the store. In Quejada, plaintiff could not identify the substance. A-0923-19T3. The Court acknowledged plaintiff’s fall was not in an area where unsealed liquid goods were sold nor did plaintiff proffer evidence that defendant dispenses liquid products in open containers. Plaintiff speculated that the bottled water on another person’s cart was the cause of the water on the floor. Yet, the Court found there was no evidence to support such an inference and therefore, affirmed the lower Court’s ruling that the plaintiff “failed establish any nexus between the liquid she alleges caused her fall and the supermarket’s mode of operation.”

 The Court has established that for the mode of operation rule to apply, there must be a nexus between the self-service component and the risk of injury. Ask how was the item packaged and where was it sold in relation to where the accident occurred, to evaluate whether the mode of operation rule applies.

This article was prepared to provide information on recent legal developments of interest and is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved.