“Mode-of-Operation” Liability for Negligence

Arroyo v. Durling Realty, LLC, 443 N.J. Super. 238 (App. Div. 2013).  Judge Sabatino may be best known for his lengthy, scholarly published opinions in complex cases such as this one or this one.  Here, however, he wrote a short little gem on an issue of negligence liability. 

Plaintiff slipped and fell on a telephone calling card that was on the sidewalk outside defendant’s Quick Chek convenience store, which plaintiff had just patronized.  Plaintiff injured her knee and sued defendant, asserting that the telephone calling card on the sidewalk constituted a dangerous condition.  She contended that since the telephone cards were displayed on racks near the store’s exit, defendant should have foreseen that phone cards would be bought, used outside, and dropped on the sidewalk.  Defendant, however, adduced evidence that the sidewalk was swept frequently and vacuumed every two or three days.  There was no evidence that any store employee knew about the phone card on the sidewalk before plaintiff fell.

The Law Division granted summary judgment to defendant.  Plaintiff appealed, and the Appellate Division affirmed.  Judge Sabatino concluded that since there was no evidence “that defendant failed to exercise due care in the manner in which it maintained the sidewalk,” and “no genuine issue as to whether defendant had actual or constructive notice of the presence of the discarded phone card on the sidewalk,” summary judgment was proper.  Though plaintiff offered expert testimony that was critical of defendant’s procedures to keep the sidewalk clear, the expert’s opinion was “not grounded in identified objective standards” and was therefore an ineffective net opinion.

The most interesting part of the opinion then followed.  Plaintiff had also relied on the “mode-of-operation liability” doctrine.  That concept, Judge Sabatino said, applies in “certain distinctive instances” to eliminate a plaintiff’s burden to prove actual or constructive notice where “as a matter of probability, a dangerous condition is likely to occur as a result as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.” 

Judge Sabatino canvassed the prior mode-of-operation liability cases, and noted that they all involved conditions within a property, not outside.  Here, “[t]he nexus between the self-service rack and the eventual presence of the card on the sidewalk outside is extremely attenuated.”  Nor did the store’s mode of operation offer a basis to exempt plaintiff from the requirement that defendant have actual or constructive notice of the allegedly dangerous condition.  The phone card, once purchased, did not have to be prepared by the store for removal from the premises.  And “[w]hat the purchaser chose to do with the card after leaving the store was not an integral feature of the store’s retail operation.”

Finally, because a phone card contains a number of minutes, it is “not necessarily going to be used and discarded immediately by its purchaser.”  Instead, it could be held for future calls.  Thus, it is not invariably tossed aside when a purchaser leaves a store.  For all those reasons, the mode-of-operation doctrine did not rescue plaintiff here.