Berry Unfortunate for Plaintiff, But Slip and Fall Claim Fails

Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 596 (App. Div. 2016).  Today, Judge Suter authored her first published opinion for the Appellate Division.  While shopping at a Burlington Coat Factory store, plaintiff allegedly slipped and fell on a single berry that was on the floor.  She injured her knee and back.  Plaintiff sued, but defendant won summary judgment.  Today, the Appellate Division affirmed that ruling, applying the de novo standard of review.

The main basis of Judge Suter’s decision was that defendant was not on actual or constructive notice of the presence of the berry.  There were no other berries in the aisle where plaintiff fell, there was no evidence that anyone was eating in that area, and there was “nothing about the characteristics of the berry that would indicate how long it had been there.”  Constructive notice is found when a dangerous condition exists “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”  Nor was there any evidence of actual notice to defendant about the berry.  “Owners of premises are generally not liable for injuries caused by defects of which they had no actual or constructive notice and no reasonable opportunity to discover.”  Accordingly, defendant was rightly granted summary judgment.

The foregoing principles are fundamental in slip and fall cases, and if that were all there were to this decision, it might not have been designated for publication.  But plaintiff also contended that the “mode of operation rule” addressed in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015), should have been applied to her case.  This opinion gave the Appellate Division the opportunity to elaborate on the recent decision in Prioleau, which advanced the law and justified publication.

In Prioleau, the plaintiff had slipped on grease that was either tracked from the kitchen of a KFC, where customers could perform some self-service, by one or more employees or tracked from outside by one or more customers.  As Judge Suter summarized Prioleau, however, “[t]he Court held it was reversible error to charge the jury on the mode-of-operation rule where there was no condition between the slippery condition of the floor and the self-service component of the business.”

Plaintiff here contended that the wrongful “mode of operation” was “the lack of any periodic inspection of the floors during the business shopping day.”  The panel saw this as an attempt to “expand the mode-of-operation rule beyond the narrow circumstances to which it has been held to apply.”  There was no self-service involved, just as in Prioleau.  “The slip and fall occurred in an aisle, not in an area of clothing racks or facilities traditionally associated with self-service activities.  There was no demonstrable nexus between the self-service component of Burlington’s business, namely selling clothes and other non-food items, and the risk of a customer slipping on a berry in the aisle.”

Mode of operation liability does not arise, under Prioleau, “merely because a store’s cleaning schedule is allegedly inadequate.”  Finding liability on such a basis would be “an expansion that would swallow the rule.”

The panel that issued this opinion consisted of Judges Suter and Sabatino.  Thus, this was a rare two-judge opinion designated for publication.  Generally, only three-judge Appellate Division decisions are approved for publication.  But there are exceptions to virtually every rule.