In Jeter v. Sam’s Club, 2021 N.J. Super. Unpub. LEXIS 919 (App. Div. May 17, 2021), the?New Jersey Appellate Division rejected a plaintiff’s argument that the trial court erred in ruling that the mode of operation doctrine did not apply to the facts of her case. Specifically, plaintiff contended defendant’s knowledge that customers routinely opened the clamshells to eat grapes and its practice of handing out loose grapes on some occasions established a nexus between the dangerous condition and defendant’s method in selling grapes. The Appellate Division disagreed, holding there was no evidence that the location where plaintiff’s accident occurred bore the slightest relationship to any self-service component of defendant’s business.

Plaintiff Aleice Jeter filed a negligence complaint seeking to recover for injuries allegedly sustained after slipping and falling on a grape in the aisle of the Linden store of defendant Sam’s Club East, LP. Relying on the mode of operation doctrine, plaintiff maintained she was excused from establishing that defendant had actual or constructive notice of any dangerous condition at the store. Defendant maintained that the mode of operation doctrine was inapplicable because it only sold grapes in tabbed, interlocking clamshell cases that were further secured by tape.  To resolve the issue, the trial court conducted a N.J.R.E. 104 hearing and concluded the mode of operation doctrine was inapplicable. The court accordingly evaluated plaintiff’s claim under well-established negligence principles and dismissed her complaint after determining plaintiff failed to establish that defendant was either actually or constructively aware of the presence of grapes on the aisle floor prior to her fall.

The Appellate Division agreed with court’s decision to dismiss the complaint on notice grounds. The Court noted that, to invoke the mode of operation doctrine, plaintiff must prove that the dangerous condition arose from the business’s self-service operation. According to the Court, “(t)he dispositive factor is . . . whether 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.” With this principle in mind, the Court found that record failed to establish a nexus between the dangerous condition and defendant’s mode of operation.  The Court pointed out that defendant’s mode of operation was to sell grapes in sealed clamshells and “frowned upon” customers who undid the tape to open the containers before purchasing the grapes and characterized that practice as tampering with the product. The Court concluded that defendant’s actions, or knowledge that certain customers improperly opened the closed containers, did not invite customers to act in such a manner.

Having determined the trial court correctly applied the mode of operation doctrine, the Appellate Division next evaluated plaintiff’s claim under traditional negligence principles.  According to the Court, plaintiff’s counsel acknowledged that the record was devoid of any proofs to establish Sam’s Club had actual notice of grapes in the aisle of the store where plaintiff fell. Additionally, the Court pointed out that the record was devoid of any evidence the defendant had constructive notice of grapes on the floor in any location in the store at any time.  Plaintiff proffered no evidence showing defendant’s employees knew or should have known before plaintiff’s fall that there were grapes on the main aisle’s floor.  Moreover, there was no evidence about how long grapes were there, such as eyewitnesses or any aged characteristics of the grapes, to indicate the amount of time defendant had to discover and remedy the situation.

This decision is important for retail defendants who operate self-service businesses that require customers to independently handle the goods they seek to purchase. It affirms that plaintiffs seeking to invoke the mode of operation doctrine must establish a nexus between the self-service component of a defendant’s business and a risk of injury in the area where an accident occurs.