In Aleice Jeter v. Sam’s Club (A-2-21/085880) (Decided March 17, 2022), the Supreme Court of New Jersey clarified when the “mode of operation” rule applies. Under the “mode of operation” rule, plaintiffs who bring premises liability claims against businesses that employ self-service models do not need to show that the business owner had actual or constructive knowledge of a dangerous condition to establish negligence. The New Jersey Supreme Court ultimately held that the rule does not apply to the sale of grapes in closed clamshell containers because selling grapes in this manner does not create a reasonably foreseeable risk that grapes will fall to the ground in the process of ordinary customer handling
Facts of Jeter v. Sam’s Club
Plaintiff Aleice Jeter brought suit against Sam’s Club after sustaining injuries when she slipped on one or more grapes in the Linden, New Jersey store. At Sam’s Club, grapes are sold in closed clamshell containers secured with tape; accordingly, Sam’s Club filed a motion in limine on the eve of trial to bar plaintiff from requesting a mode of operation jury instruction.
The trial court conducted an N.J.R.E. 104(a) hearing and determined that the mode of operation rule did not apply. It reasoned that because Sam’s Club “elected to sell grapes, not loosely, but in containers, that will certainly be less of a danger.” The court then analyzed the case under traditional negligence principles. After that sua sponte review, the court concluded there was no evidence to support actual or constructive knowledge of the alleged dangerous condition. The court therefore dismissed the case, even though Sam’s Club had not filed a motion for summary judgment. The Appellate Division affirmed the trial court’s judgment.
NJ Supreme Court’s Decision in Jeter v. Sam’s Club
The New Jersey Supreme Court also affirmed. “We agree with the trial and appellate courts that the mode of operation rule does not apply to the sale of grapes in closed clamshell containers,” Justice Lee Solomon wrote. “Selling grapes in this manner does not create a reasonably foreseeable risk that grapes will fall to the ground in the process of ordinary customer handling.”
While it upheld the trial court’s judgement, the New Jersey Supreme Court found that “the procedure followed by the trial court is troubling and should not be repeated,” emphasizing that it was improper for the trial judge to convert an untimely motion in limine into a motion for summary judgment. As Justice Solomon explained, “Dispositive motions should not be made or decided on the eve of trial, without providing the parties with a reasonable opportunity to present their cases through testimony and argument. The trial court should not have reached the merits of plaintiff’s traditional negligence claim on its own and without giving the parties any further opportunity to present evidence in support of their positions.”
With regard to the substantive issues of the case, Justice Solomon explained that mode of operation is a judicially created rule that relieves a plaintiff of the burden of proving actual or constructive notice of a dangerous condition in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents. He went on to note that in Prioleau v. Ky. Fried Chicken, 223 N.J. 245, 248 (2015), the court reaffirmed that the rule is limited to the self-service setting, where customers are independently handling merchandise without the assistance of employees. In Prioleau, the court further clarified that the rule applies wherever “there is a nexus between self-service components of the defendant’s business and a risk of injury in the area where the accident occurred,” and whether the injury resulted from employee handling, customer negligence, or the “inherent qualities of the merchandise itself.”
Applying the above legal principles, the New Jersey Supreme Court concluded that the mode of operation rule did not apply to the sale of grapes in closed clamshell containers. In support, the court cited that Sam’s Club is a self-service business. While there was geographic proximity between plaintiff’s fall and the self-service sale of grape containers, the court noted that Sam’s Club permitted only the self-service sale of pre-packaged sealed grape containers, not grapes, on the display.
The New Jersey Supreme Court also found it compelling that Sam’s Club elected not to sell grapes in open-top, vented plastic bags, like those found to create a foreseeable risk of spillage in Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 561, 566 (2003), and found no nexus between plaintiff’s fall on grapes and Sam’s Club’s self-service sale of grape containers. The court was not persuaded by the argument that Sam’s Club knew its customers occasionally opened the grape containers in the store because the clamshell package itself was secure and because customers were not permitted to open the containers — doing so was tampering with the product.