Nisivoccia v. Glass Gardens, Inc. , 175 N.J. 559 ( 2003 )

LONG, J.,

concurring.

I agree with the majority’s articulation of the “mode of operation” theory of Wollerman and its concomitant shifting of the burden of production. I write separately to dispel what I view as possible confusion that could arise from the opinion.

As I read the opinion, it is an affirmation of plaintiffs’ interpretation of Wollerman: that where a hazardous mode of operation is in place in a supermarket, a party injured anywhere in the store as a result of that mode of operation is entitled to a shift in the burden of production. Here, the “mode of operation” that created the hazard was the use of open-topped, slitted bags to package produce that was likely to fall onto the floor if the bags were handled or if they spilled accidentally anywhere in the supermarket. Thus, the outer limits of the “checkout” area and the motility of the grapes are essentially irrelevant.

This case no more turns on grapes and the checkout area than Wollerman turned on lettuce and the produce department. Both stand for a principle: that when a substantial risk of injury is inherent in the method of operation of a business, the plaintiff is relieved of coming forward with proof of actual or constructive notice of the dangerous condition. The risk of injury that justified relieving the plaintiff of the burden of production in this case was inherent in the packaging of the produce and that was all plaintiffs needed to prove to come under the Wollerman umbrella.

For reversal and remandment — Chief Justice PORITZ and Justices COLEMAN, LONG, LaVECCHIA, ZAZZALI and ALBIN — 6.

Opposed — None.