In a recent unpublished Appellate Division case decided on June 1, 2023, the Court addressed the issues of actual or constructive and the “mode of operation” doctrine in the setting of a slip and fall at the supermarket. The trial court held that the doctrine did not apply and granted summary judgment on behalf of the defendant supermarket. In Miguez v. Shoprite of Kearney, LLC, the plaintiff, Delmy Miguez, was injured after falling on a metal vent cover that fell from a self-serve refrigerator near the deli department of the supermarket. Surveillance video from the day of the incident showed that the vent cover fell off of the refrigerator after an employee of the supermarket placed items inside and walked away. Subsequently, customers ran over the vent cover with their shopping carts before the plaintiff stepped on the cover and fell.
Defendant Shoprite filed a motion for summary judgment in the trial court and asserted that they did not have actual or constructive notice of the condition that caused the plaintiff’s fall. In response, the plaintiff claimed that the “mode of operation” doctrine should apply, or, in the alternative, the defendant created the condition that caused her fall, relieving her of the burden to prove defendant had actual or constructive notice. The “mode of operation rule” is a judicially created rule that applies in self-service settings, where customers would be independently handling the merchandise without the assistance of employees. See Prioleau v. Ky. Fried Chicken, 223 N.J. 245, 248 (2015). Under the “mode of operation” rule, plaintiffs who bring premises liability claims against businesses that employ self-service models do not need to show that the business owner had actual or constructive knowledge of a dangerous condition to establish negligence. Prioleau, 223 N.J. at 248 (citing Nisivoccia v. Glass Gardens, Inc., 175 N.J. 563-565 (2003). It creates a presumption of negligence, excusing the plaintiff from having to show notice and shifting the burden to the defendant to show it exercised due care. Prioleau, 223 N.J. at 258.
In reaching their decision, the Appellate Division focused on the cause of the plaintiff’s fall, the metal vent cover, and held that the “mode of operation” doctrine did not apply in this instance. The Court found that plaintiff’s injury was not caused by any food item offered for sale in a self-service area, where the doctrine generally applied, and therefore it was not foreseeable, that a vent cover, not food because of droppage or spillage, would be on the supermarket floor. The Court did find, however, that there were genuine issues of material fact with regard to whether the defendant supermarket had actual or constructive notice of the dangerous condition, or whether the defendant created the condition that caused the plaintiff’s fall.
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