A case likely headed toward the New Jersey Supreme Court may decide whether the “mode of operation” doctrine, which makes it easier to prove premises liability claims, applies only to self-service businesses.
The issue arose in a suit against Kentucky Fried Chicken by a customer who claims she slipped on grease that was tracked by employees from the deep fat fryers used in the kitchen.
An appeals court on Tuesday threw out a $138,643 judgment for Janice Prioleau and remanded for a new trial, finding the jury was mistakenly charged to apply the mode-of operation doctrine.
In a precedential ruling, the 2-1 majority said that the doctrine’s application should be restricted to a “business model that encourages self-service on the part of the customer, which can reasonably and foreseeably create a risk of harm to the customer.”
However, the dissent in Prioleau v. Kentucky Fried Chicken Inc. allows an appeal by right to the state high court, and plaintiff lawyer Glenn Montgomery says he will take advantage of it.
The mode-of-operation doctrine, codified in Model Civil Jury Charges 5.20F, eliminates the need for an injured customer to prove notice of an unsafe condition where the manner in which a business operates creates the hazard.
It dates back to Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966), where the plaintiff slipped on a loose string bean in a grocery store that allowed customers to select produce from open bins.
Most subsequent cases have involved injuries attributed to food or beverages spilled in a self-service supermarket or eatery. Other scenarios involved a customer allegedly injured by a golf bag that fell off a display in a self-service store and an IKEA customer who claimed he tripped over a string provided by the store for customers to tie purchases to their cars.
Last October, another published appeals court opinion, Arroyo v. Durling Realty, refused to apply the doctrine in a suit by a woman who allegedly hurt her knee when she slipped on a discarded telephone calling card when leaving a Quick Chek store.
The Arroyo court said the doctrine typically involves “a mode of operation designed to allow the patron to select and remove the merchandise from the premises without intervention from any employee of the storekeeper.” Although the phone cards were displayed on a self-service rack at Quick Chek, buyers would have to remove them, present them to the cashier and take them out of the store, making the nexus with the card on the sidewalk an “extremely attenuated” one, stated the court.
At Prioleau’s 2012 trial in Essex County, Superior Court Judge Sebastian Lombardi gave the Model Rule 5:20F instruction over a defense objection. He relied on a 1967 appellate case, Smith v. First National Stores, 94 N.J. Super. 462. The customer there fell on sawdust located on a store stairwell also used by its employees. The stairs were five feet from the store’s meat department which had sawdust spread on the floor.
Prioleau fell while headed to the rest room right after entering the Cherry Hill KFC during what she described as torrential rain. She thought she fell in grease mixed with water and claimed the floor where she fell was so slick that her two adult children also started to slip when they tried to help her up.
She reported the incident but declined medical help, alleging she realized only later that she was hurt. She was later diagnosed with lower back bulges, arthritis and a herniated disk, for which she had physical therapy.
KFC witnesses testified they saw no moisture on the floor but put up cones in the area for a while afterward. They also admitted that employees used the same rest room as customers, that grease could be tracked from the kitchen area and that the restaurant used separate color-coded mops for the kitchen and dining area.
On appeal from the plaintiff’s verdict, Judges Marie Lihotz and Paulette Sapp-Peterson said the “mode-of-operation liability does not apply merely because a defendant operates a fast food restaurant.”
In his dissent, Judge Richard Hoffman agreed with the majority to that extent but disagreed with limiting the doctrine to self-service type businesses. In his view, it applies where there is a “risk of injury inherent in the nature of the defendant’s operation.”
Hoffman said he saw no distinction between the color-coded mops and the sawdust in Smith, both of which “represented a well-intentioned, but far-from-perfect, effort to address problems posed by the tracking of substances that reach the floor in the preparation of food.”
“Given the well-recognized risks to the health and safety of both patrons and workers posed by a greasy, slippery floor, I see no sound reason to impose the majority’s limitation on the mode-of-operation doctrine,” he wrote.
He also saw equitable basis for applying the doctrine: KFC’s failure to closely inspect the floor where Prioleau fell or to preserve the log book documenting the incident.
Plaintiff lawyer Montgomery, of Montgomery, Chapin & Fetten in Bridgewater, says the issue has to be decided of whether the doctrine applies with respect to a fast food restaurant where it is foreseeable that the mode of operation can cause a dangerous condition for patrons.
KFC attorney Beth Carter, of Bennett, Bricklin & Saltzburg in Philadelphia, did not return a call.
Denise Ricci of Wade Clark Mulcahy in Mountainside, a defense lawyer not involved in the case who defends premises liability suits, says the majority was correct and the doctrine is a very limited exception to the rule that a plaintiff must prove notice of the hazardous condition blamed for the injury.
She notes that in Prioleau, there was no lettuce or string or something clearly identifiable as part of KFC’s operations that caused the fall.