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I don't usually take interest in the nuances of New Jersey tort law, but the mode-of-operation doctrine is a significant player in Massachusetts, where I teach. Also, slipping on grocery-store grapes is so prototypical a case in the doctrine that it's a cliché, so I could not resist.
"Mode of operation" enjoys wide but not universal support in U.S. tort law. As well explained by Wilson Elser attorney Jennifer L. Moran in commenting on the New Jersey case:
[The] doctrine relieves a plaintiff of the burden of proving actual or constructive notice of a dangerous condition in a situation in which a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct or incidents. The rule has been applied where food is sold or served in open containers or bins, such as food courts, supermarkets or fast food restaurants. In many cases, a plaintiff’s failure to provide any evidence that the defendant had actual or constructive knowledge of the alleged dangerous condition is the defendant’s sole opportunity to obtain summary judgment to dismiss the claim.
The doctrine is highly correlated with self-service business, and, as I said, grab-and-go grocery-story grapes count.
A friend of mine is a grocery store manager in Australia, and you don't want to get him started on grape-related customer slip-and-falls. The aggravation is multiplied by customers' insistence on eating the merchandise, which one might think should bring some kind of assumption-of-risk theory into play. The store once tried to sell grapes in sealed bags, my mate said, but did away with them because customers were outraged to see their nicking snackery curtailed. The store had to tolerate losses and risk as a cost of customer satisfaction. My mate was elated at the advent of no-slip flooring in the produce department.
Anyway, you can see why innovation in the presentation of grape inventory has been a big deal in the grocery biz. And Sam's Club no doubt thought it was onto something big when it started selling grapes in clamshell containers.
In the New Jersey case, the court held 4-2 that the clamshell packaging moved grapes out of the mode-of-operation doctrine. Moran explained:
The court therefore found there was no foreseeable risk that grapes would fall on the ground in the process of ordinary handling by customers. The court held the mode of operation doctrine did not apply and the plaintiff had to establish the defendants knew or should have known that the grapes were on the floor for a period of time prior to the accident and failed to take reasonable remedial action. In this recent decision, the court limits the application of the mode of operation doctrine because the merchandise was in a sealed container, finding the pre-packaged merchandise did not create a foreseeable risk of spillage and there was no nexus between the plaintiff’s fall on grapes and the self-service sale of grapes in containers.
Sam's Club accomplished something that had eluded a defendant in 2003, Moran further recounted, when the court refused to suspend mode of operation for "grapes that were sold in open-top, vented plastic bags that permitted spillage."
If shoppers remain true to form, the dissent might have the better argument in the end. Dissenting justices opined that Sam's Club knows that its customers still open the clam shells in the store, setting grapes loose.
The case is Jeter v. Sam's Club, No. A-2-21 (085880) (N.J. Mar. 17, 2022). Justice Lee A. Solomon wrote the majority opinion.
