New Jersey Supreme Court Limits Use of Mode-of-Operation Rule – by Joseph Kreoll

Joseph KreollRecently, the New Jersey Supreme Court issued a decision in Prioleu v. Kentucky Fried Chicken, Inc. (074040) in which it addressed the mode-of-operation rule and its application to a fall in a fast food restaurant. Significantly, the Court clarified that mode-of-operation applies only to situations where the customer foreseeably serves himself, or otherwise directly engages with products or services unsupervised by an employee.

The plaintiff had entered a Kentucky Fried Chicken restaurant in Cherry Hill, New Jersey with her adult children, while on their way home to Delaware. Upon entering the restaurant, the plaintiff immediately went to the counter with her children, and after telling her son what she wanted to eat, headed to the restroom by herself. As the plaintiff approached the restroom, she slipped and fell on the floor near the restroom, which she described as greasy and wet. The corporate area manager had acknowledged that kitchen employees could “possibly” track cooking oil to customer areas when they used the restrooms.

A plaintiff seeking to establish negligence against a business proprietor must prove as an element of his claim that the proprietor had actual or constructive knowledge of the dangerous condition that caused the accident. This burden is modified when the mode-of-operation rule applies, which rule creates a rebuttable presumption that the proprietor is negligent, and removes the need for plaintiff to prove actual or constructive notice. The primary issue faced by the Court in Prioleu was whether the plaintiff was entitled to a mode-of-operation jury instruction in the absence of any evidence that the allegedly dangerous condition bore a relationship to the self-service component of the defendant’s business.

The Prioleu Court declined the invitation to extend mode-of-operation beyond its historical applications, and in doing so, made several observations regarding the application of this rule. First and foremost, the mode-of-operation rule does not apply outside of the self-service setting, in which customers independently handle merchandise without the assistance of employees. The Court noted that the mode-of-operation rule was not a general rule of premises liability, but was instead a special application of foreseeability principles that recognized the risks associated with customer self-service.

The Prioleu decision is an excellent exposition of the principles associated with mode-of-operation cases. Most significantly, under the right circumstances, it may provide a basis for a summary judgment in those slip and fall cases where self-service is not implicated, and a plaintiff cannot demonstrate actual and constructive notice using any other means.