In certain slip and fall scenarios, the specific cause of the incident is obvious and easy to prove based on readily available circumstantial evidence. For example, the injured party slipped on an overlooked puddle of spilled cleaning soap that left a sudsy residue on their shoes or the plaintiff tumbled down a staircase due to a loose bannister that detached from the wall.
From a legal perspective, the above mentioned types of cases are, unfortunately, few and far between. The majority of slip and fall claims involve less apparent fact patterns in which it can be challenging to determine exactly what conditions attributed to the plaintiff’s injury – and even harder to attribute liability in a court of law. Often, the hazardous setting that lead to the accident is identified. However, it is not known how it came about or whether it had remained there for a long enough period of time that an employee of the defendant business should have discovered and removed it.
Litigating Premises Liability Claims
In order to successfully litigate a premises liability claim, a plaintiff who slips and falls in a place of business must first prove that the owner knew or should have known of the hazardous condition that resulted in the patron’s injury and failed to address it. Put simply, the plaintiff must demonstrate that the business was in some way at fault or “negligent.” In order for there to be “fault” attributable to the business, it must have first had actual or constructive notice of the dangerous condition. It is not sufficient for the injured party to merely show that their fall was due to the existence of a hazard on the premises. The business owner must have had prior notice (meaning they knew or should have known) of the danger and failed to take reasonable remedial action.
Proving that the business owner had constructive or actual notice is a difficult burden of proof for many claimants to meet. For many years, these frustrating situations ultimately resulted in many slip and fall claims, submitted by injured patrons, to be summarily dismissed due to the fact that they lacked the requisite evidentiary standard to establish negligence.
That all changed in the 1966 landmark New Jersey Supreme Court case of Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966). In that case, a woman alleged she slipped and fell on a string bean in the produce section of the defendant’s grocery store. The Court reasoned as follows:
When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator’s vigilance must be commensurate with that risk.
The Court’s holding established what is now commonly referred to as the “Wollerman Rule” or “The Mode of Operation Rule.” The Wollerman Rule created an exception to the standard burden of proof – plaintiffs must establish in specific instances where the defendant’s business’s “mode of operation” invites the possibility for inherent dangers to be created.
In other words, the Wollerman Rule means that some companies sell their goods in such a way that invites patrons to interact with them in a manner that might reasonably lead to the existence of a slip and fall hazard. Open vegetable displays at a grocery store, a self-serve buffet station in a restaurant, and a cologne aisle in a department store where customers can sample scents and potentially leave a slick residue on the floor, are just a few examples of methods of business operations that could lead to the application of the Wollerman Rule.
In such a scenario, the Wollerman Rule effectively shifts the burden of proof to the defendant, requiring them to demonstrate that they took reasonable precautions in order to protect their patrons from the dangers that were likely to result from the way in which they conduct business. In other words, the Wollerman Rule infers constructive notice on the part of a business owner. Due to the fact that the injured party is commonly the sole first-hand witness of their own slip and fall incident, and it can be challenging to retrieve reliable evidence to support their claim, the Wollerman Rule is frequently an invaluable asset to slip and fall claimants.
Contact an Experienced Cape May Personal Injury Attorney
Have you, a family member, or a friend suffered a slip and fall injury in the Cape May area? A premises liability attorney at Petro Cohen can inform you of your legal rights. Our attorneys will work to hold the responsible parties accountable for your losses and help you seek the compensation you deserve.
With over 100 years of combined legal experience, Petro Cohen personal injury attorneys Barry Cohen, Susan Petro, Rich Gaeckle, and Mike Veneziani will handle your personal injury case, fighting for full and fair compensation in every case they handle. They have successfully handled thousands of personal injury cases for clients throughout Southern New Jersey. Additionally, Petro Cohen law firm was named to the prestigious U.S. News & World Report Best Law Firms in America® list in New Jersey for Personal Injury in 2017.
In addition to slip and fall cases, the personal injury attorneys at Petro Cohen can help with many other types of serious personal injury, such as construction accidents, automobile or motorcycle accidents, product liability cases, traumatic brain injuries, and wrongful death cases.
Call us today (888-675-7606) to schedule your free, no-obligation consultation. at one of our four southern New Jersey offices (Cape May Court House, Northfield, Cherry Hill, and Hamilton). We work on a contingency fee basis, so you will only pay our legal expenses if we can successfully make a settlement on your behalf. The time is limited to pursue a claim in New Jersey, so it is important that you file your premise liability lawsuit within the statute of limitations.