Walker v. Costco Wholesale Warehouse, 445 N.J. Super. 111 (App. Div. 2016). Earlier this year, in Troupe v. Burlington Coat Factory, 443 N.J. Super. 596 (App. Div. 2016), discussed here, Judge Suter, joined by Judge Sabatino, applied the Supreme Court’s decision in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015), and rejected application of “mode of operation” liability. Today, Judge Sabatino wrote an opinion, for a panel that included Judges Suter and O’Connor, which reversed a Law Division decision not to instruct the jury on mode of operation liability.
Plaintiff was shopping in a Costco warehouse store when he passed by a table where a vendor was offering free samples of cheesecake. Costco encourages such vendors, since customers will often buy products after trying samples, and Costco profits from such purchases. After moving “a relatively short distance away” from the cheesecake table, plaintiff slipped on a substance that had “a white appearance like a yogurt-based product,” but which he could not conclusively identify He fell, injuring his shoulder.
Plaintiff and his wife sued Costco for negligence and, alternatively, “that the store had created a hazardous condition by its ‘mode of operation’ by giving out free food samples to customers.” The Law Division declined to give a Model Civil Jury Charge on mode of operation liability. After the jury came back in favor of Costco on the negligence claim, and plaintiff’s motion for a new trial was denied, he appealed. The Appellate Division reversed and remanded for a new trial on mode of operation liability.
A requested jury charge should be given, Judge Sabatino said, “as long as there is a reasonable basis in the evidence to support the predicate factual contention that can trigger the charge, in light of the proofs and all reasonable inferences that may be drawn from those proofs.” Carefully canvassing prior cases, Judge Sabatino observed that mode of operation claims have been permitted in New Jersey where dangerous conditions at a premises arise from food self-service circumstances. There was “no legal significance in whether the edible items are offered within a defendant’s establishment for free or instead for sale.” The mode of operation charge should have been given because free samples are offered “for Costco’s own business advantage, as a method of promotion and advertising to encourage customers to purchase take-home versions of those same products.” And the “white” product might have been cheesecake.
Judge Sabatino cautioned, however, that at the new trial, plaintiff would have to show “a reasonable nexus between the store’s self-service activity and the dangerous condition allegedly producing his … injury.” Thus, plaintiff had to persuade the jury that the substance on which he slipped was cheesecake. Moreover, plaintiff would not get the chance to re-try his negligence claim. “That claim is conclusively decided.” Finally, Costco would have “the ability to rebut any mode-of-operation inference with competing proof that its maintenance activities to inspect for and clean up debris on the store’s floor were reasonable under the circumstances.”
“Although plaintiff has not provided a particularly compelling factual basis to support his mode-of-operation argument, he presented enough evidence to at least justify the model charge being issued.” Plaintiff has another chance to win at trial, but a win is by no means assured.