Jeter v. Sam’s Club, ___ N.J. ___ (2022). Writing for a 4-2 majority, Justice Solomon began his opinion for the Court today as follows:
“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. See Prioleau v. Ky. Fried Chicken, 223 N.J. 245, 248 (2015). In this appeal, the Court considers whether the rule applies to the sale of grapes in closed clamshell containers.”
As Justice Solomon went on to explain, the “mode of operation” doctrine has three components. A store can be subject to a presumption of negligence under the doctrine when (1) the store operates in a self-service manner, allowing customers to handle goods themselves, (2) the claimed injury occurs in geographical proximity to where the goods are being handled by customers, and (3) there is “a reasonable factual nexus between the self-service activity and the dangerous condition causing plaintiff’s injury.” Only the third of those elements was at issue here.
Plaintiff was injured when she fell on one or more grapes in defendant’s store. Though grapes are sold in sealed clamshell containers there, defendant admitted that customers can and do open the containers while in the store, though defendant did not permit that and considered that it was “tampering with the product.” Plaintiff fell not far from where the grapes were offered. Thus, the only issue was the “reasonable factual nexus.”
The Law Division found no such nexus and entered judgment for defendant on a motion in limine. The Appellate Division affirmed. Today, a divided Supreme Court affirmed. The four Justice majority included, in addition to Justice Solomon, Chief Justice Rabner and Justices Patterson and Pierre-Louie. Justice Albin wrote the dissent, which Judges Fuentes joined. The majority applied de novo review.
Both opinions relied on the same group of prior cases: Prioleau, which involved a slip and fall on grease or rainwater tracked by customers into a KFC restaurant, a case where a slimy surface on the floor of a self-service cafeteria was the culprit for an injury, a third matter involving the sale of string beans in open bins and, most importantly, Nisivoccia v. Glass Gardens, 175 N.J. 559 (2003), where the Court applied the mode of operation doctrine to a case where the plaintiff slipped on one or more grapes that were sold in “open-top, vented plastic bags.”
The majority ruled for defendant because, unlike in the prior cases, “[c]ustomers and Sam’s Club employees were not intended to handle the grapes, and the grapes were packaged and sold in sealed clamshell containers secured by tape — a method that posed virtually no chance of spillage during ordinary, permissible customer handling.” The dissenters, said the majority, wanted to expand the mode of operation rule, but the majority declined to do so.
The dissenters, on the other hand, said that “[n]o expansion of the rule is necessary.” In their view, the fact that Sam’s knew that customers could and did open the clamshells created the necessary nexus, as a result of which the case should have gone to a jury. Justice Albin cited two cases from other jurisdictions, one of which (a decision by the highest court of Massachusetts) involved a slip and fall on a grape.
One other aspect of the opinion bears mention. Justice Solomon strongly condemned the procedure of entering judgment on a motion in limine. Rule 4:25-8(a)(1) defines a motion in limine as “an application returnable at trial for a ruling regarding the conduct of the trial, including admissibility of evidence, which motion, if granted, would not have a dispositive impact on a litigant’s case” (emphasis by Justice Solomon). The procedure here violated that principle, but since plaintiff had not satisfied the third prong of the “mode of operation” test, the Supreme Court affirmed the result.