The Fast Food And Self-service Industry: The Mode Of Operation Doctrine

On March 3, 2014, the Appellate Division of the New Jersey Superior Court ruled that the “mode of operation” rule does not automatically apply to every accident occurring in a fast food or self-service business. In a two to one decision, the Court overturned the plaintiff’s verdict in Prioleau v Kentucky Fried Chicken, Inc. et als. and remanded the case for a new trial.

Plaintiff had entered the KFC restaurant during a torrential rain storm. She and her children were soaked, and the family “tracked water into the restaurant.” The plaintiff did not notice water or “wetness” on the floor while making her way to the restroom. About five feet from the restroom door, she started “to slip and slide like [she] was on ice.” At trial, she described the floor’s surface: “It was just like a sheet of ice. It was slippery. It was wet. . . the floor felt like grease . . . and water.”

Defendant produced testimony regarding company policies that required careful monitoring of the customer floor area for spills of whatever kind. Floors were mopped every evening or whenever a spill was observed or reported. Floors would also be mopped whenever a customer tracked water onto the premises. When a floor was wet, warning signs would be erected. The restaurant kitchen supervisor described how chickens were cooked in open split vat fryers and pressure cookers. The kitchen floor would be mopped two or three times per day or if there were a spill. The restaurant manager testified that she did not notice any substances on the dining room floor. Nor did anyone complain that the floor was wet or greasy. After the accident, the manager inspected the location where plaintiff fell and saw no water, grease or other substance on the floor.

The “mode of operation” doctrine allows a plaintiff to establish a prima facie case for the jury without the need to establish actual or constructive knowledge or notice by the commercial business owner.

Over defendant’s objection, the trial judge included a “mode of operation” charge to the jury. The majority of the Appellate Division concluded that the trial court erred in the charge, misapplying the “mode of operation” doctrine to this case. After reviewing relevant precedents, the majority ruled that the “mode of operation” doctrine did not automatically apply to a every self-service or fast food business. The majority emphasized that before a “mode of operation” charge would be warranted, “[p]laintiff must establish a causal nexus between the fast food or other business operation and the harm causing the fall.” In other words, “[t]o trigger mode-of-operation liability, a plaintiff must identify facts showing a nexus between the method or manner in which the business is operated when extending products or services to the public, and the harm alleged to have caused the plaintiff’s injury. ”

The majority concluded that the plaintiff had failed to establish the necessary nexus, ruling that the trial record was devoid of proof that the plaintiff fell on grease caused by the defendant’s fry cook who may have used the bathroom and possibly had grease on the soles of his shoes. The majority noted that the “mode of operation” doctrine did not apply in a setting in which liability is predicated on the possibly negligent conduct of a specific business employee, as distinct from a setting in which the operational business model, encouraging self-service on the part of the customer, can reasonably and foreseeably create a risk of harm to the customer.

As this decision is probably going to the New Jersey Supreme Court, I quote from the dissent: “I conclude that the facts before the jury raised legitimate inferences that plaintiff’s fall was caused by grease on the floor related to defendant’s mode of operation, where workers, exposed to the oil and grease in the kitchen, were not provided with a separate bathroom but were required to use the restrooms provided for customers.”

Should the Supreme Court accept the dissent’s rationale, all self-service and fast food restaurants would now be subject to a new theory of liability, the mode-of-operation doctrine.

Date Published: March 1, 2017

Written by: Cooper Levenson, P.A.

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