A New Jersey appeals court on Wednesday refused to extend a doctrine that provides a shortcut to proving premises liability.
In a precedential ruling, the Appellate Division affirmed dismissal of a suit by a customer who claimed she slipped on a discarded telephone calling card as she left a Quick Chek store in Wantage, hurting her knee.
Jacquelin Arroyo alleged that the plastic card on the sidewalk created an unreasonably dangerous condition that Quick Chek, which sells the cards, should have foreseen.
She relied on the “mode of operation” doctrine, which eliminates the need to show knowledge of a dangerous condition where the nature of the business, the condition of the property or a pattern of incidents make the danger likely.
The doctrine was recognized in a 1966 slip-and-fall case where the state Supreme Court found a reasonable probability that a dangerous condition would occur—there, a slippery floor in a busy self-service cafeteria that did not supply beverage-container lids or require patrons to use trays.
Model Civil Jury Charge 5.20F codifies the doctrine, stating that a defendant is liable if jurors find the premises were in a “hazardous condition” caused by the defendant’s employees, customers or others; the condition was likely to result from the way the business was run; and the defendant failed to take “reasonable measures” to prevent the hazard or to discover and correct it.
Liability exists in such circumstances even if the defendant and its employees lacked “actual or constructive knowledge of the particular unsafe condition, which cause the accident and injury.”
The charge has chiefly been given in cases over food or beverages spilled in a self-service supermarket or cafeteria.
Other scenarios have involved a plaintiff injured by a golf bag that fell off a display in a self-service store and an IKEA customer who claimed he tripped in a loading area on string provided for customers to tie items to their cars.
In Arroyo v. Durling Realty, Hudson County Superior Court Judge Lourdes Santiago granted the defense summary judgment, saying the mode-of-operation doctrine did not apply and Arroyo could not prove Quick Chek employees knew about the phone card or that it was there for an unreasonable length of time.
On appeal, Judges Jack Sabatino, Carmen Messano and Margaret Hayden agreed, saying the doctrine typically involves hazards inside a defendant’s retail building and “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 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, Sabatino wrote.
He added that the store’s way of doing business could not reasonably be deemed to create the hazard, since what the buyer did with a card after leaving was not an integral part of its operations nor would a phone card necessarily be used up and discarded right outside.
Quick Chek’s lawyer, Suzanne Del Vecchio of Whitehouse Station, says the appeals court wanted to confine the doctrine to the self-service context.
Denise Ricci of Wade Clark Mulcahy in Mountainside, a defense lawyer not involved in the case, says the court was probably motivated to publish the opinion to make clear there must be a tie between how a business operates and the danger, because plaintiffs keep coming up with “creative theories” for applying the doctrine.
She says Arroyo was trying to do the same thing as the plaintiff in Cashour v. Dover Parkade, where an appeals court held on Feb. 15 that the doctrine did not apply to a claim that the plaintiff slipped on a plastic bag outside a dollar store.
Paul Caliendo, of Gill & Chamas in Woodbridge, who represented the plaintiff in that matter, says the Arroyo ruling dilutes the mode-of-operation doctrine and whittles away at the power of the jury by not letting it decide whether it should be applied.
Arroyo’s attorney, Christopher Byrnes of Zavodnick, Perlmutter & Boccia in Jersey City, did not return a call.