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Limitations on Mode of Operation Rule Could Mean Sour Grapes for Some Plaintiffs

Jul 20, 2022 | Written by: Sharon M. Flynn, Esq. |

In a recent decision, the New Jersey Supreme Court ruled that the “mode of operation rule does not apply to the sale of grapes in closed clamshell containers.”  Jeter v. Sam’s Club, 2022 N.J. LEXIS 242 (March 17, 2022).  Importantly, this decision limits retailers’ liability for injuries customers sustain when they slip and fall as a result of a product being spilled or dropped from closed or sealed self-service containers.

In Jeter, the plaintiff sued Sam’s Club after slipping on grapes and sustaining injuries in its Linden, New Jersey store.  Sam’s Club sold its grapes in closed clamshell containers sealed with tape. The containers were not intended to be opened by customers before purchase and were transparent, so that customers could see the quality of the grapes without needing to open the packaging.  Despite this, the plaintiff argued that Sam’s Club was negligent in its sale of these grapes. 

Typically, under New Jersey’s premises liability law, a proprietor (store) owes its invitees (customers) due care under all the circumstances. In a situation where an invitee is injured by a dangerous condition on the business owner’s premises, the owner is liable for such injuries if the owner had actual or constructive knowledge of the dangerous condition that caused the accident.  However, a plaintiff is relieved of the burden of proving that a proprietor had actual or constructive notice of a dangerous condition in situations where, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the condition of the property, or a pattern of conduct or incidents.   When this “mode of operation rule” applies, it “gives rise to a rebuttable inference that the defendant is negligent and obviates the need for the plaintiff to prove actual or constructive notice.” 

Although the grapes at Sam’s Club were sold in closed containers sealed with tape and were not supposed to be opened by customers, the plaintiff testified that, “she had observed loose grapes not in their containers ‘several times.’ ”  The plaintiff also testified that she observed other customers opening the taped clamshell packaging to taste grapes “plenty of times.”  Sam’s Club claimed that it had no actual or constructive notice of the hazardous condition, i.e., the loose grapes on the floor.  Further, on the eve of trial, Sam’s Club filed a motion to bar the plaintiff from a mode of operation jury charge.  If the trial court decided that the mode of operation doctrine did apply, it would have made it much easier for the plaintiff to prove her case at trial, as she would not have been required to show that Sam’s Club had actual or constructive notice of the grapes on the floor.  The trial court, however, determined that the mode of operation rule did not apply and concluded that Sam’s Club “elected to sell grapes, not loosely, but in containers, that will certainly be less of a danger.” 

Since the mode of operation rule did not apply and it was determined that Sam’s Club had no actual or constructive notice of the grapes on the floor, the trial court dismissed the plaintiff’s case.  The plaintiff then appealed the trial court’s refusal to apply the mode of operation doctrine (but not the trial court’s finding that Sam’s Club had no actual or constructive notice).  The trial court’s decision was affirmed by the Appellate Court.  The case was further appealed to the Supreme Court, which also affirmed the trial court’s decision. 

The Supreme Court looked to prior matters in which the mode of operation rule was discussed. The Court observed that this doctrine is only applicable in self-service settings, where customers are permitted to independently handle merchandise without the assistance of employees. The Court also noted that this rule applies to all areas affected by the business’s self-service setting, not just the precise location of the self-service setting.  Further, the Court noted that the rule also applies “whether the injury resulted from employee handling, customer negligence, or the ‘inherent qualities of the merchandise itself.' "

The Supreme Court found that the first two elements of the mode of operation test had been satisfied, as the sale of grapes was part of Sam’s Club’s self-service operation and the plaintiff’s fall had a geographical proximity to the self-service sale of the grapes.  However, the Court struggled with the applicability of the third element, that is, that there be “a reasonable nexus between the self-service activity and the dangerous condition causing plaintiff’s injury.” The Court had to consider “whether the packaging of grapes in closed clamshell containers makes it reasonably foreseeable that grapes will drop on the floor.”

The Court acknowledged that this rule had traditionally been applied in cases where falls occurred due to produce being dropped on the floor as a result of customers handling the product.  However, the Supreme Court distinguished those cases from the facts in Jeter by emphasizing the fact that Sam’s Club permitted only the self-service sale of pre-packaged sealed grape containers, not loose grapes on display. It was clear that Sam’s Club did not intend for its customers to handle the grapes but, rather, it only intended them to handle the closed grape containers. In fact, the store manager testified that the store did not permit its customers to open the containers in the store and that doing so was “frowned upon” and constituted tampering with the product.

The Supreme Court found it compelling that Sam’s Club “elected not to sell grapes in open-top, vented plastic bags – a method we decided creates a reasonably foreseeable risk that grapes will fall to the ground.” The Court stated that by selling the grapes packaged in sealed clamshell containers secured by tape, it was a method “that posed virtually no chance of spillage during ordinary, permissible customer handling.” Thus, the Supreme Court found “no nexus between plaintiff’s fall on grapes and Sam’s Club’s self-service sale of grape containers.”

The Court further noted that it found unpersuasive the plaintiff’s argument that Sam’s Club knew its customers occasionally opened the grape containers in the store.  The Court stated that Sam’s Club’s sale of grapes in secure packaging posed no foreseeable risk that grapes would end up on the floor, and that its knowledge that customers occasionally opened the clamshell case to sample grapes did not circumvent the defendant’s mode of operation, which the court found was “targeted towards safety.”

Accordingly, the Supreme Court held that “the mode of operation rule does not apply to the sale of grapes in closed clamshell containers.”  Since the plaintiff had not appealed the trial court’s ruling that there was no actual or constructive notice of the grapes on the floor, the plaintiff’s case was dismissed.

The Court’s refusal to expand the boundaries of the mode of operation rule was a big win for retailers.  Without the benefit of the application of the doctrine, plaintiffs who slip and fall on items that are sold in secured packaging will need to prove that the retailer had actual or constructive notice that the product was on the floor. 

If you have suffered an injury due to a slip and fall that you feel was the result of a retailer’s negligence, please reach out to one of our personal injury lawyers at 908-735-5161. 

Sharon M. Flynn


Sharon M. Flynn, Esq. is a partner with Gebhardt & Kiefer, PC, and practices primarily in the areas of general litigation, employment law, and insurance defense.

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.