Who Squashed the Grapes? How Product Packaging Affects Premises Liability and the Mode of Operation Rule
The Supreme Court of New Jersey has re-visited the question of the mode of operation rule as it applies to premises liability in the case of Jeter v. Sam’s Club, 250 N.J. 240 (2022). This case takes on a new question as to whether this rule is applicable to the sale of grapes which are sold in closed clamshell containers.
Normally when a plaintiff is injured due to a dangerous condition, for example a slip and fall accident caused by a piece of food on the floor, the plaintiff ordinarily has the burden to prove that the business had notice of the condition. This notice could be actual (e.g. a customer telling the business about the condition) or constructive (e.g. the condition existing long enough that the business should have known about it). However, the mode of operation rule relieves a plaintiff of the burden of proving 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. This rule commonly applies to businesses that have self-service components such as supermarkets selling produce in open containers/bins or at self-service buffets. What matters in the application of the mode of operation rule in this context is that customers are serving themselves and, therefore, the business can expect that they may mishandle the products. As a result, the characteristics of the goods themselves as well as their packaging have a critical impact on whether a dangerous condition will materialize.
It should be noted that our Supreme Court had previously found that the mode of operation was limited to situations in which there is a nexus between self-service components of the defendant’s business, 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. Prioleau v. Ky. Fried Chicken, 223 N.J. 245 (2015).
In Jeter, the packaging was the central focus in the application of the mode of operation rule. Unlike grapes sold in open top vented bags in grocery stores where they can reasonably be expected to fall out, Sam’s Club was selling grapes in closed clamshell containers which were taped shut. The Supreme Court found that Sam’s Club permitted only the self-service sale of pre-packaged sealed grape containers, not grapes, on the display. Unlike situations where customers handle grapes packaged in open-top, vented plastic bags, customers and employees at Sam’s Club were not intended to handle or package the grapes themselves as they were to only handle the closed grape containers. Consequently, the Court found that there was no connection between the plaintiff’s fall on grapes and Sam’s Club’s self-service sale of grape containers. That is, while it was undisputed that the defendant operated a self-service business and that the plaintiff’s fall bore a relationship to the self-service component of the store, the plaintiff failed to establish a nexus between the dangerous condition and the defendant’s mode of operation.
In short, the application of the mode of operation rule may give a significant advantage to a plaintiff in normal circumstances as it eliminates the need for a defendant business owner to be on notice of a condition. However, the Jeter opinion represents a path for defendants to rebut a plaintiff’s attempt to apply the rule by limiting its overall scope.
Businesses can attempt to remove the nexus between the dangerous condition and a business’s mode of operation by changing the packaging on certain products which make them susceptible to the mode of operation rule. While the Jeter decision is not applicable to every business, establishments that sell goods handled directly by the consumers should consider how they package their products. Specifically, by changing the packaging of certain products, as Sam’s Club did by placing their grapes in taped shut clamshells versus open-top plastic bags, businesses can make their establishment a little bit safer and provide stronger defenses for future litigation.
If you have any questions about the mode of operation rule and its applicability to premises liability matters, contact Amelia R. Lyte, Kristin M. Gummoe, or Joseph V. Leone or call as at 732-545-4717.