Appeals Court Refuses to Extend “Mode of Operation” Doctrine in NJ Premises Liability Case

In good news for New Jersey businesses, the Appellate Division of the New Jersey Superior Court recently held that a Quick Chek was not liable for a customer’s injuries after she slipped on a phone card while exiting the store. The court refused to extend the “mode of operation” doctrine, which makes it easier to prove a premises liability claim.

The Facts of the Case

In Arroyo v. Durling Realty, Jacquelin Arroyo filed a personal injury claim against the owner of a Quick Chek convenience store in Wantage, New Jersey. The plaintiff alleges that she slipped on a discarded telephone calling card, which was on the sidewalk near the store entrance, and injured her knee.

Arroyo argues that presence of the plastic card on the sidewalk created an unreasonably dangerous condition. In support of her liability claim against the New Jersey business, she notes that the phone cards are displayed near the store’s cash register and the exit doors, making it foreseeable that the purchased cards would be taken out of the store, immediately used, and discarded on the sidewalk.

In its defense, the store’s manager testified that the front of the store is swept for debris ten to fifteen times daily, while the entire front sidewalk and parking lot are swept twice each day. There was no evidence that store employees were aware of the presence of the card on the sidewalk prior to the accident.

To prove her premises liability claims, the plaintiff relied on the “mode of operation doctrine,” which eliminates the need to prove actual or constructive notice where, “as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.” In these type of case, the burden shifts to the defendant to produce rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard

The Court’s Decision

The Appellate Division ultimately upheld the decision of the lower court to dismiss the suit on summary judgment based on the finding that the defendant did not have actual or constructive notice of the presence of the discarded phone card on the sidewalk. The panel further agreed that it was not appropriate to impose mode-of-operation liability.

As noted in the opinion, previous cases applying the doctrine involved “a mode of operation designed to allow the patron to select and remove the merchandise from the premises without intervention from any employee of the storekeeper.” In this case, “[t]he patron who presumably bought the phone card would have had to take it off the display rack, present it to a cashier at checkout, had the card activated by the cashier, and paid for the card before taking it out of the store. The nexus between the self-service rack and the eventual presence of the card on the sidewalk outside is extremely attenuated,” the court explained.

The court also concluded that the convenience store’s “method of doing business” could not reasonably be assumed to create the hazard encountered by plaintiff on the sidewalk. The panel noted that “what the purchaser chose to do with the card after leaving the store was not an integral feature of the store’s retail operation,” and that purchasers would not necessarily through the card away immediately.

Thus, the decision suggests that the doctrine will remain limited to traditional self-service operations, such as supermarkets and cafeterias.

If you have any questions about this case or would like to discuss the legal issues involved, please contact me, Christine Vanek, or the Scarinci Hollenbeck attorney with whom you work.