Janice J. Prioleau v. Kentucky Fried Chicken, Inc.074040)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Prioleau v. Kentucky Fried Chicken, Inc. (A-99-13) (074040)
Argued March 17, 2015 – Decided September 28, 2015
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers the application of the mode-of-operation rule to plaintiff’s personal
injury claims. Under the mode-of-operation rule, a business invitee who is injured on the premises of the business is
entitled to an inference of negligence and is relieved of the obligation to prove that the business owner had notice of
the dangerous condition that caused the accident.
On December 26, 2009, plaintiff and her adult son and daughter were on a trip from their home in
Delaware to New Jersey. Plaintiff and her children recall that the day was rainy; plaintiff stated that there was a
“torrential storm.” They stopped for dinner at a Kentucky Fried Chicken restaurant in Cherry Hill.
When plaintiff entered the restaurant, she immediately went to the counter to tell her son what she wanted
to eat, and then headed to the restroom. As she approached the restroom, plaintiff slipped and fell, landing on her
buttocks and hands. According to plaintiff, the floor near the restroom was greasy and wet, and she testified that it
was slippery “like I was on ice.”
Although she testified that she was in pain, plaintiff did not seek immediate medical attention. Plaintiff
continued on their trip. After returning to Delaware, plaintiff sought medical treatment and was referred to a
neurosurgeon who prescribed physical therapy. Plaintiff alleged that she suffers constant pain in her lower back,
takes pain medication, and that the pain has affected her ability to perform some of the tasks assigned to her work.
Managers and employees of Kentucky Fried Chicken testified that employees are expected to regularly
monitor customer areas and to mop up spills and excess water. One manager testified that oil was used to cook the
food served and sometimes spilled on the kitchen floor. She acknowledged that kitchen employees could “possibly”
track cooking oil to customer areas when they used the restrooms.
Plaintiff filed this action asserting a negligence claim and alleging that defendants failed to exercise
reasonable care. The matter was tried before a jury over three days. At the jury charge conference, plaintiff’s
counsel claimed plaintiff was entitled to a mode-of-operation jury charge because oil may have been tracked from
the restaurant kitchen to the floor near the restroom. The trial court agreed, also citing testimony that the employees
“should have a cone out on a rainy day.” Instead of choosing one of the alternative model charges on the mode-of-
operation rule set forth in the Model Jury Charge (Civil), the trial court gave both alternatives in sequence. In
addition, the trial court separately instructed the jury based on the charge, “Notice Not Required When Condition is
Caused by Defendant,” which permits a plaintiff to recover without showing that the defendant had notice of the
unsafe condition if the owner or employee created the unsafe condition through his or her own act or omission.
The jury found defendants negligent and defendants appealed. A divided Appellate Division panel
reversed the trial court’s determination on the mode-of-operation rule, vacated the judgment and remanded for a new
trial. A dissenting member of the panel viewed the majority’s construction of the mode-of-operation rule too limited
and deemed the rule applicable. Plaintiff appealed as of right based on the dissenting opinion.
HELD: The mode-of-operation rule applies only in situations where the customer foreseeably serves himself or
herself, or otherwise directly engages with products or services unsupervised by an employee. Plaintiff’s theories of
liability did not involve a self-service operation that might warrant a mode-of-operation jury instruction. Because the
trial court’s erroneous mode-of-operation charge may well have determined the jury’s verdict, defendant is entitled to a
new trial on the issue of liability.
1
1. The sole issue raised by this appeal is whether the trial court’s decision to charge the jury on the mode-of-
operation rule constituted reversible error. Not every improper jury charge warrants reversal. A new trial is
warranted only where the jury could have come to a different result had it been correctly instructed. (pp. 13-15)
2. Ordinarily, an invitee seeking to hold a business proprietor liable in negligence must prove, as an element of the
cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the
accident. The burden imposed on a plaintiff invitee is substantially altered in settings in which the mode-of-
operation rule applies. The rule gives rise to a rebuttable inference that the defendant is negligent, and obviates the
need for the plaintiff to prove actual or constructive notice. (pp. 15-16)
3. In all of its prior mode-of-operation cases, this Court has emphasized the self-service nature of the defendant’s
business. The Appellate Division has taken a similar approach, applying the rule to cases arising from injuries in
which defendants conduct self-service operations. One principle derived from these cases is that the mode-of-
operation rule is not a general rule of premises liability, but a special application of foreseeability principles in
recognition of the extraordinary risks that arise when a defendant chooses a customer self-service business model.
(pp. 16-24)
4. The trial court here did not properly apply the mode-of-operation rule and the Appellate Division majority
correctly stated the scope of the rule. There is no evidence in the trial record that the location in which plaintiff’s
accident occurred bears the slightest relationship to any self-service component of defendants’ business. Moreover,
plaintiff’s theories of liability do not involve a self-service operation that might warrant a mode-of-operation jury
instruction. (pp. 24-27)
5. Plaintiff contends that even if the trial court erred in giving the mode-of-operation charge, it was harmless error
that does not warrant a new trial. That argument is premised on the notion that the jury may have based its finding
of negligence not on the mode-of-operation rule, but on the different standard that governs cases in which the
defendant or its employees caused the dangerous condition. Based on the record at trial, the court cannot conclude
that the error was harmless. The jury could have found liability based only on the mode-of-operation rule.
Defendants are therefore entitled to a new trial on the issue of liability. (pp. 27-29)
The judgment of the Appellate Division is AFFIRMED as MODIFIED, and the matter is REMANDED
for further proceedings consistent with the Court’s opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned), join in JUSTICE PATTERSON’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-99 September Term 2013
074040
JANICE J. PRIOLEAU,
Plaintiff-Appellant,
v.
KENTUCKY FRIED CHICKEN, INC.,
and KFC CORPORATION,
Defendants,
and
YUM BRANDS, INC. and KFC U.S.
PROPERTIES, INC.,
Defendants-Respondents.
Argued March 17, 2015 – Decided September 28, 2015
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 434
N.J. Super. 558 (App. Div. 2014).
Glenn A. Montgomery argued the cause for
appellant (Montgomery, Chapin & Fetten,
attorneys; Gary Ahladianakis, on the
briefs).
Beth A. Carter argued the cause for
respondents (Bennett, Bricklin & Saltzburg,
attorneys).
Lewis Stein argued the cause for amicus
curiae The New Jersey Association for
Justice (Nusbaum, Stein, Goldstein,
Bronstein & Kron, attorneys).
JUSTICE PATTERSON delivered the opinion of the Court.
1
In a series of decisions arising from personal injuries
sustained by business invitees on the premises of businesses
whose operations involve customer self-service, this Court has
recognized a principle known as “mode of operation.” See
Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563-65 (2003);
Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-30
(1966); Bozza v. Vornado, Inc., 42 N.J. 355, 359-60 (1964).
Under the mode-of-operation rule, a business invitee who is
injured is entitled to an inference of negligence and is
relieved of the obligation to prove that the business owner had
actual or constructive notice of the dangerous condition that
caused the accident. See Nisivoccia, supra, 175 N.J. at 563-65;
Wollerman, supra, 47 N.J. at 429-30; Bozza, supra, 42 N.J. at
359-60. The rule has only been applied to settings such as
self-service or a similar component of the defendant’s business,
in which it is reasonably foreseeable that customers will
interact directly with products or services, unassisted by the
defendant or its employees.
In this appeal as of right from a judgment in favor of
plaintiff Janice J. Prioleau, pursuant to Rule 2:2-1(a)(2), we
review the trial court’s application of the mode-of-operation
rule to plaintiff’s personal injury claim. Plaintiff sustained
injuries in a fall as she walked to the restroom in a Kentucky
Fried Chicken restaurant. She alleged that she fell either
2
because defendants failed to exercise reasonable care to keep
the restaurant floor dry on a rainy evening or because
defendants’ employees tracked oil and grease from the
restaurant’s kitchen to the area near the restroom.
At trial, although the evidence suggested no nexus between
any self-service aspect of the restaurant’s operations and
plaintiff’s accident, the trial court instructed the jury to
consider the mode-of-operation rule. The jury returned a
verdict in plaintiff’s favor, and defendants appealed. A
majority of the Appellate Division reversed, holding that the
trial court’s mode-of-operation charge was improper in the
circumstances of this case, and remanded for a new trial. A
member of the panel concurred in part and dissented in part,
finding ample support for the mode-of-operation charge in the
testimony presented at trial.
We affirm as modified the judgment of the Appellate
Division. The trial record establishes that plaintiff’s
injuries were unrelated to any aspect of defendants’ business in
which the customer foreseeably serves himself or herself, or
otherwise directly engages with products or services,
unsupervised by an employee. Neither theory of liability
advanced by plaintiff involved the limited circumstances in
which the mode-of-operation rule has been held to apply.
Because the mode-of-operation rule significantly reduced
3
plaintiff’s burden of proof, and may have determined the
outcome, the trial court’s charge on the rule constituted
reversible error. Accordingly, we remand this matter to the
trial court for a new trial on the issue of liability.
I.
This appeal arose from a slip-and-fall accident that
occurred on December 26, 2009, at a Kentucky Fried Chicken
restaurant in Cherry Hill.1 The restaurant was owned by KFC U.S.
Properties Inc., whose parent corporation is Yum! Brands Inc.2
According to the deposition testimony of Yum! Brands’ Loss
Prevention Manager, which was read into the record at trial, the
corporation’s policy is that employees are expected to regularly
monitor customer areas and to set up safety signs to alert
customers in areas where the floors are wet. The Cherry Hill
Kentucky Fried Chicken store manager testified that the
restaurant did not have a policy to clean the floors “throughout
the course of the day,” but that the floors would be cleaned “if
there was a spill.” She testified that on rainy days, when
1 Our summary of the facts is derived from the trial record. The
facts are not stipulated; the parties substantially dispute the
condition of the restaurant floor, the cause of plaintiff’s
accident, and the extent of her injuries.
2 Defendants assert that the lead defendant named by plaintiff as
the owner of the restaurant, Kentucky Fried Chicken, Inc., does
not exist. They represent that “Yum! Brands, Inc. is the parent
company of KFC U.S. Properties, Inc.; and KFC Corporation is a
sister corporation of KFC U.S. Properties, Inc.”
4
customers tracked water into the restaurant, employees would
post “wet floor” signs and would use a mop to remove water “if
it’s too wet[.]”
The corporate area manager testified that oil was used to
cook the food served and that oil sometimes spilled on the
kitchen floor. She acknowledged that kitchen employees could
“possibly” track cooking oil to customer areas when they used
the restrooms. The restaurant’s manager on duty stated that the
facility cleaned the floors with color-coded mops, which are
used to clean either the kitchen or the customer areas, to
prevent the spread of oil from the kitchen to floors used by
customers. According to the assistant manager on duty, when she
arrived for her shift about four hours prior to plaintiff’s
accident, she did not conduct a detailed inspection of the
floor.
On the evening of her accident, plaintiff and her adult son
and daughter, Richard Prioleau and Adriana Prioleau, were on a
trip from their home in Delaware to New Jersey. The family
planned to meet a friend who would then drive plaintiff’s son to
his destination, New York City. Plaintiff and her children
recalled that the weather that evening was rainy; plaintiff
stated that there was a “torrential storm.”
At approximately 6:00 p.m., plaintiff and her children
decided to stop at the Kentucky Fried Chicken restaurant to have
5
dinner. When plaintiff entered the restaurant, she immediately
went to the counter to tell her son what she wanted to eat, and
then headed to the restroom. Plaintiff testified that, because
of the heavy rain outside, she and her children “tracked water”
into the restaurant.
As she approached the restroom, plaintiff slipped and fell,
landing on her buttocks and hands. According to plaintiff, the
floor near the restroom felt greasy and wet, and she testified
that it was slippery “like I was on ice . . . like Ice Capades.”
She stated that there were no mats or warning signs in the area
where she fell. Plaintiff’s son, daughter, and another patron
came to plaintiff’s aid; plaintiff stated that “they were
sliding around, too,” as they tried to lift her to her feet.
Plaintiff’s children agreed with her that the floor near the
restroom at the restaurant was “slippery” and “greasy.”
Significantly, for purposes of this appeal, nothing in the
record suggests that when she fell, plaintiff was engaged in, or
in contact with, any self-service activity, such as filling a
beverage cup at a restaurant soda machine, selecting items from
a condiment tray, or that patrons were carrying their drinks or
food to the restroom area. Indeed, plaintiff’s testimony
established that she had not yet ordered or purchased her dinner
when her accident occurred. Instead, by her own account,
plaintiff fell immediately after entering the restaurant.
6
According to plaintiff, she was in pain after her fall but
did not immediately seek medical attention. Pursuant to
corporate policy, the assistant manager on duty apologized to
plaintiff and provided free meals to her and her children. The
assistant manager testified that, although she observed no
liquid on the floor where plaintiff had fallen, she posted a
cone by the restroom. Plaintiff and her children left the
restaurant and continued their trip to meet their friend.
After returning to Delaware, plaintiff went to the
emergency room, and was subsequently examined by her family
physician, who referred her to a neurosurgeon. The neurosurgeon
prescribed physical therapy. Plaintiff alleged that she
experiences constant pain in her lower back and takes pain
medication, that she refused treatment involving needles or
surgery because she considers it invasive, and that her pain has
affected her ability to perform some of the tasks assigned to
her at work.3
Plaintiff filed this action in the Law Division. She
asserted a negligence claim and specifically alleged that
defendants failed to exercise reasonable care by failing to
3 Plaintiff’s expert diagnosed a contusion with sprain and strain
to the lower back and several bulging and herniated discs, as
well as activation of preexisting asymptomatic degenerative
changes in the lumbar spine. Defendants did not present expert
testimony regarding plaintiff’s medical condition.
7
provide plaintiff, an invitee, with “a safe place to traverse
the premises[.]”
The case was tried before a jury over three trial days. At
the close of the proofs, defendants moved for a directed
verdict, and the trial court denied defendants’ motion.
At the jury charge conference, plaintiff’s counsel asserted
that, because oil may have been tracked from the restaurant
kitchen to the floor near the restroom, plaintiff was entitled
to a mode-of-operation jury charge. Plaintiff’s counsel defined
the mode of operation in this case as “[t]he fact that there’s
grease being used in the operation,” and “[t]he fact that
[defendants’ managers] have testified that they should go out
and look at and examine the floor all the time or everyday[.]”
Over defense counsel’s objection, the trial court agreed to give
the mode-of-operation jury charge, stating that “this was a fast
food restaurant [with] only six tables, [and] a lot of people in
and out on a rainy day.” The court also cited testimony that
“they should have a cone out on any rainy day” because the floor
would become wet and slippery.
The trial court did not choose one of the alternative model
charges on the mode-of-operation rule set forth in Model Jury
Charge (Civil) 5.20F(11), “Notice Not Required When Mode of
8
Operation Creates Danger” (May 1970),4 but gave both alternatives
in sequence. In addition, the trial court separately instructed
the jury based on Model Jury Charge (Civil) 5.20F(9), “Notice
Not Required When Condition is Caused by Defendant,” which
permits a plaintiff to recover without showing that the
defendant had actual or constructive notice of the unsafe
condition, if the jury finds that the premises “was not in a
reasonably safe condition” and “the owner[,] occupier or his/her
agent, servant or employee created that condition through
his/her own act or omission[.]”
The jury found defendants negligent, without identifying
the theory of negligence on which its verdict was based, and
concluded that defendants’ negligence was a proximate cause of
plaintiff’s accident. It allocated 51% of the fault to
defendants and 49% to plaintiff, and awarded plaintiff $250,000
in damages. Pursuant to the Comparative Negligence Act,
N.J.S.A. 2A:15-5.2(d), the trial court molded the verdict to
reflect the allocation of fault. It awarded $11,143.09 in
prejudgment interest and entered judgment in plaintiff’s favor,
totaling $138,643.09.
4 Since the trial in this case, the mode-of-operation charge has
been renumbered as Model Jury Charge (Civil) 5.20F(10), “Actual
and Constructive Notice Defined” (rev. Dec. 2014).
9
Defendants appealed the trial court’s judgment. A divided
Appellate Division panel affirmed the trial court’s denial of
defendant’s motion for a directed verdict and declined to review
an evidentiary issue regarding plaintiff’s prior medical
history. Prioleau v. Ky. Fried Chicken, Inc., 434 N.J. Super.
558, 564 (App. Div. 2014). However, a majority of the panel
reversed the trial court’s determination on the mode-of-
operation rule, vacated the trial court’s judgment and remanded
the matter for a new trial. Ibid.The majority reasoned that “the unifying factor” in case
law recognizing the mode-of-operation doctrine “is the
negligence [that] results from the business’s method of
operation, which is designed to allow patrons to directly handle
merchandise or products without intervention from business
employees, and entails an expectation of customer carelessness.”
Id. at 574 (citing Craggan v. IKEA USA, 332 N.J. Super. 53, 62
(App. Div. 2000)). The majority noted that the mode-of-
operation rule is not contingent on the conduct of the
defendant’s employees, but on “the business model that
encourages self-service on the part of the customer, which can
reasonably and foreseeably create a risk of harm to the
customer.” Id. at 582 (citing Nisivoccia, supra, 175 N.J. at
564). It observed that “[t]his concept does not lead to broad
application.” Id. at 579. Applying those principles to this
10
matter, the majority found nothing in the record evincing a
“business practice that created an implicit or inherent danger”
likely to cause plaintiff’s injury. Id. at 582. It found that
plaintiff’s accident did not involve the “limited circumstances”
in which the mode-of-operation rule applies. Id. at 583.
A member of the panel agreed with the majority’s denial of
the defendants’ motion for a directed verdict and its view of
the evidentiary issue regarding plaintiff’s medical records, but
disputed the majority’s reversal of the trial court’s
determination on the mode-of-operation rule. Id. at 588(Hoffman, J.A.D., concurring in part, dissenting in part). The
judge agreed that the mode-of-operation rule turns on the
defendant’s method of business operation, and that the rule is
not triggered merely by the fact that defendant’s business is a
fast food restaurant, but viewed the majority’s construction of
the rule as too limited. Id. at 592. Relying on Smith v. First
National Stores, Inc., 94 N.J. Super. 462, 464-66 (App. Div.
1967), a case involving a supermarket customer who slipped on
sawdust that store employees spread on the floor near a
restroom, the concurring and dissenting judge argued that the
facts of this case supported application of the mode-of-
operation doctrine. Id. at 592-95.
11
Based on the dissenting opinion of the Appellate Division
judge regarding the mode-of-operation rule, plaintiff appealed
as of right. See R. 2:2-1(a)(2).
II.
Plaintiff argues that the Appellate Division majority
improperly limited the scope of the mode-of-operation rule. She
asserts that application of the rule is not contingent on
whether the hazard was created by customer self-service, but
hinges on whether the dangerous condition was created by the
defendant’s customers or employees and is inherent in the
defendant’s business. Plaintiff argues that the use of cooking
oil and grease is an integral feature of defendants’ fast-food
operation, and that the evidence adduced at trial supported a
jury determination that plaintiff’s accident occurred because
employees tracked oil and grease from the kitchen to the floor
near the restroom.
Alternatively, plaintiff argues that even if the trial
court erroneously charged the jury to consider the mode-of-
operation rule, the jury was properly instructed under Model
Jury Charge (Civil) 5.20F(9), supra, an alternative theory of
liability that obviates the need to prove actual or constructive
notice if the dangerous condition is caused by the defendant.
Thus, in plaintiff’s view, even if the trial court’s mode-of-
operation charge was erroneous, that error was harmless.
12
Defendants contend that the mode-of-operation rule is
irrelevant to this case because the rule applies only to
operations arising from self-service aspects of supermarkets or
other retail establishments, in which customers’ activities,
such as pulling items from shelves and bins, give rise to
dangerous conditions. Defendants assert that the trial court
erroneously extended the mode-of-operation rule to virtually all
retail establishments. They claim that the trial court’s mode-
of-operation instruction was not harmless error because
impermissible jury instructions are presumed to be reversible
error, and because plaintiff prevailed in this case by the
slimmest of margins -- an allocation of 51% of the fault to
defendants and the remaining 49% to plaintiff.
III.
A.
The sole issue raised by this appeal is whether the trial
court’s decision to charge the jury on the mode-of-operation
rule constituted reversible error.
“It is fundamental that ‘[a]ppropriate and proper charges
to a jury are essential for a fair trial.’” Velazquez ex rel.
Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting State
v. Green, 86 N.J. 281, 287 (1981)). “‘A jury is entitled to an
explanation of the applicable legal principles and how they are
to be applied in light of the parties’ contentions and the
13
evidence produced in the case.’” Viscik v. Fowler Equip. Co.,
173 N.J. 1, 18 (2002) (quoting Rendine v. Pantzer, 276 N.J.
Super. 398, 431 (App. Div. 1994), aff’d, 141 N.J. 292 (1995)).
As such, “[j]ury charges ‘must outline the function of the jury,
set forth the issues, correctly state the applicable law in
understandable language, and plainly spell out how the jury
should apply the legal principles to the facts as it may find
them[.]’” Velazquez, supra, 163 N.J. at 688 (quoting Jurman v.
Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966)); see Mogull v.
CB Commer. Real Estate Grp., 162 N.J. 449, 464 (2000) (“The jury
charge ‘should set forth an understandable and clear exposition
of the issues.’” (quoting Campos v. Firestone Tire & Rubber Co.,
98 N.J. 198, 210 (1984))). “‘A jury instruction that has no
basis in the evidence is insupportable, as it tends to mislead
the jury.’” Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1,
13-14 (2000) (quoting Lesniak v. Cnty. of Bergen, 117 N.J. 12,
20 (1989)).
Nonetheless, not every improper jury charge warrants
reversal and a new trial. “As a general matter, [appellate
courts] will not reverse if an erroneous jury instruction was
‘incapable of producing an unjust result or prejudicing
substantial rights.’” Mandal v. Port Auth. of N.Y. & N.J., 430
N.J. Super. 287, 296 (App. Div.) (quoting Fisch v. Bellshot, 135
N.J. 374, 392 (1994)), certif. denied, 216 N.J. 4 (2013). Those
14
principles guide our review of the charge given at trial in this
matter.
“Generally, a proprietor’s duty to his invitee is one of
due care under all the circumstances.” Bozza, supra, 42 N.J. at
359; see also Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012)
(noting that landowner’s duty of reasonable care to business
invitee “‘encompasses the duty to conduct a reasonable
inspection to discover latent dangerous conditions’” (quoting
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993))).
Ordinarily, an invitee seeking to hold a business proprietor
liable in negligence “must prove, as an element of the cause of
action, that the defendant had actual or constructive knowledge
of the dangerous condition that caused the accident.”
Nisivoccia, supra, 175 N.J. at 563 (citing Brown v. Racquet Club
of Bricktown, 95 N.J. 280, 291 (1984)); see also Arroyo v.
Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013)
(stating that “[t]he absence of [actual or constructive] notice
is fatal to plaintiff’s claims of premises liability,” and that
“[t]he mere existence of an alleged dangerous condition is not
constructive notice of it” (internal quotation marks and
citation omitted)).
The burden imposed on a plaintiff invitee is substantially
altered in settings in which the mode-of-operation rule applies.
The rule gives rise to a rebuttable inference that the defendant
15
is negligent, and obviates the need for the plaintiff to prove
actual or constructive notice. See Nisivoccia, supra, 175 N.J.
at 563-65; Wollerman, supra, 47 N.J. at 429; Bozza, supra, 42
N.J. at 359-60.
This Court first addressed the mode-of-operation rule in
Bozza, supra, 42 N.J. at 359-60. There, the plaintiff contended
that she fell on “‘a sticky substance which was very slimy’” in
a section of the defendant store’s cafeteria. Id. at 358. She
contended that in this self-service facility, in which customers
consumed or “carried [their food], with or without trays,” there
were “drippings, paper straw holders, napkins and dirt on the
floor.” Ibid. The Court cited “[f]actors bearing on the
existence of [a] reasonable probability” that a dangerous
condition would occur: “the nature of the business, the general
condition of the premises, [and] a pattern of conduct or
recurring incidents.” Id. at 360. The Court reasoned that
“[t]o relieve the plaintiff of the requirement of proving actual
or constructive notice in such instances is to effect a more
equitable balance in regard to the burdens of proof.” Ibid. It
further explained that “[o]nce plaintiff introduces evidence
which raises an inference of negligence, defendant may then
negate the inference by submitting evidence of due care.” Ibid.Two years later, the Court reached a similar conclusion in
a case arising from a plaintiff’s fall on a string bean in the
16
produce aisle of a supermarket. See Wollerman, supra, 47 N.J.
at 428-30. There, the Court focused on the self-service method
of doing business that the supermarket had chosen,
characterizing the dispositive factor as the “mode of
operation”:
When greens are sold from open bins on a self-
service basis, there is the likelihood that
some will fall or be dropped to the floor. If
the operator chooses to sell in this way, he
must do what is reasonably necessary to
protect the customer from the risk of injury
that mode of operation is likely to generate;
and this whether the risk arises from the act
of his employee or of someone else he invites
to the premises. The operator’s vigilance
must be commensurate with that risk.
[Id. at 429 (citing Kahalili v. Rosecliff
Realty, Inc., 26 N.J. 595, 603 (1958); Ambrose
v. Cyphers, 29 N.J. 138, 144 (1959)).]
The Court identified that there were three potential
reasons for the plaintiff’s accident -- a store employee’s
carelessness in piling and displaying the beans, an employee’s
carelessness in handling the beans, and “carelessness of a
patron.” Id. at 429. The Court determined that the question of
notice to the defendant would be relevant only in the third of
those possibilities, customer negligence. Ibid. “[E]ven
there,” the Court noted, “since the patron’s carelessness is to
be anticipated in this self-service operation, defendant is
liable, even without notice of the bean’s presence on the floor,
if . . . defendant failed to use reasonable measures
17
commensurate with the risk involved to discover the debris a
customer might leave and to remove it before it injures another
patron.” Ibid. The Court concluded that the plaintiff was
entitled to an inference of negligence, and that the defendant
should be required to rebut that inference with evidence that it
had used reasonable care. Id. at 429-30.
The Court again applied the mode-of-operation rule in a
case arising from a customer’s fall in a grocery store in
Nisivoccia, supra, 175 N.J. at 561, 563-66. There, a customer
was injured when she slipped on a grape near the entry of the
checkout line at a supermarket that displayed its produce “in
open-top, vented plastic bags that permitted spillage.” Id. at
561-63. Distinguishing this case from Wollerman on the ground
that the accident occurred near the checkout line, rather than
in the produce aisle, the trial court declined to apply the
mode-of-operation rule, and the Appellate Division affirmed.
Id. at 562.
This Court reversed, holding that the plaintiff was
entitled to a mode-of-operation jury instruction. Id. at 565-
66. It reasoned that “[a] location within a store where a
customer handles loose items during the process of selection and
bagging from an open display obviously is a self-service area,”
and that in such a setting, a mode-of-operation charge is proper
“when loose items that are reasonably likely to fall to the
18
ground during customer or employee handling would create a
dangerous condition.” Id. at 565. Focusing on the
foreseeability of the hazard in self-service areas, the Court
concluded that the checkout line raises the same safety concerns
as the produce aisle setting addressed in Wollerman:
Customers typically unload their carts onto
the checkout counter. Droppage and spillage
during that process are foreseeable. Indeed,
because of the way the grapes were packaged,
they could easily have fallen out when
accidentally tipped or upended in a shopping
cart anywhere in the store. The open and air-
vented bags invited spillage. It was
foreseeable then that loose grapes would fall
to the ground near the checkout area, creating
a dangerous condition for an unsuspecting
customer walking in that area.
[Ibid.]
The Court stated that the mode-of-operation rule applies
when, “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.” Id. at 563. It defined the supermarket’s mode of
operation to include “the customer’s necessary handling of goods
when checking out, an employee’s handling of goods during
checkout, and the characteristics of the goods themselves and
the way in which they are packaged.” Id. at 566. It held that,
in the retrial of the matter, negligence would be inferred, and
19
the store would be required to present evidence of due care.
Ibid.Thus, in all of its prior mode-of-operation cases, this
Court has emphasized the self-service nature of the defendant’s
business. Id. at 563-66; Wollerman, supra, 47 N.J. at 429-30;
Bozza, supra, 42 N.J. at 359-61. Significantly, the Court has
applied the rule in self-service settings even when the accident
resulted from the negligence of employees, as distinct from the
carelessness of patrons, which has caused the dangerous
condition. See Nisivoccia, supra, 175 N.J. at 563-65;
Wollerman, supra, 47 N.J. at 429-30; Bozza, supra, 42 N.J. at
359-60.
Taking a similar approach, the Appellate Division has
applied the mode-of-operation rule to cases arising from
injuries in both indoor and outdoor areas in which defendants
conduct self-service operations. See Ryder v. Ocean Cnty. Mall,
340 N.J. Super. 504, 507-09 (App. Div.) (affirming trial court’s
mode-of-operation jury charge in action brought by shopping mall
patron who fell on “clear liquid” in area that was “the
functional equivalent of a cafeteria”), certif. denied, 170 N.J.
88 (2001); Craggan, supra, 332 N.J. Super. at 56-58, 61-63(holding that independent contractor who fell on string while
loading merchandise was entitled to mode-of-operation charge
where defendant allowed patrons to select and remove merchandise
20
from premises without intervention from store employees); O’Shea
v. K. Mart Corp., 304 N.J. Super. 489, 491-93 (App. Div. 1997)
(finding that plaintiff customer injured when golf bag fell from
display did not need to prove that defendant store had notice of
dangerous condition because “defendant [wa]s obligated to
maintain . . . an enterprise consistent with the nature of its
operation” as “a self-service store”).
Moreover, appellate panels have consistently denied
plaintiffs’ requests for a mode-of-operation charge in the
absence of any nexus between the self-service aspect of
defendant’s business and the plaintiff’s injury. See Arroyo,
supra, 433 N.J. Super. at 241, 244 (declining to apply mode-of-
operation rule to claim of plaintiff injured on public sidewalk
by tripping on used phone card against store that may have sold
card); Carroll v. N.J. Transit, 366 N.J. Super. 380, 384, 389-90
(App. Div. 2004) (holding that mode-of-operation rule was
irrelevant to claim of plaintiff injured after tripping on dog
feces on subway steps); Znoski v. Shop-Rite Supermarkets, Inc.,
122 N.J. Super. 243, 246-49 (App. Div. 1973) (denying store
customer’s request for mode-of-operation charge in case arising
from injury inflicted on store property by unknown perpetrator
who struck customer with shopping cart).
We derive several principles from these cases. First, the
mode-of-operation doctrine has never been expanded beyond the
21
self-service setting, in which customers independently handle
merchandise without the assistance of employees or may come into
direct contact with product displays, shelving, packaging, and
other aspects of the facility that may present a risk. See
Nisivoccia, supra, 175 N.J. at 563-66; Wollerman, supra, 47 N.J.
at 429-30; Bozza, supra, 42 N.J. at 358-60; Craggan, supra, 332
N.J. Super. at 56-58; O’Shea, supra, 304 N.J. Super. at 491-93.
The distinction drawn by these cases is sensible and practical.
When a business permits its customers to handle products and
equipment, unsupervised by employees, it increases the risk that
a dangerous condition will go undetected and that patrons will
be injured. Thus, the mode-of-operation rule is not a general
rule of premises liability, but a special application of
foreseeability principles in recognition of the extraordinary
risks that arise when a defendant chooses a customer self-
service business model.
Second, the rule applies only to accidents occurring in
areas affected by the business’s self-service operations, which
may extend beyond the produce aisle of supermarkets and other
facilities traditionally associated with self-service
activities. See Nisoviccia, supra, 175 N.J. at 563-65 (applying
mode-of-operation rule to accident in supermarket checkout
area); Ryder, supra, 340 N.J. Super. at 507-09 (applying rule to
customer accident in areas in which patrons carried food and
22
drinks); Craggan, supra, 332 N.J. Super. at 57-58, 61-62(applying rule to customer fall in self-service loading area
outside of store). The dispositive factor is not the label
given to a particular location, but 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.
Third, the mode-of-operation rule is not limited to cases
in which customer negligence created the dangerous condition; it
also applies to self-service settings in which the injury may
have resulted from the manner in which employees handled the
business’s products or equipment, or the inherent qualities of
the merchandise itself. See Nisivoccia, supra, 175 N.J. at 566(observing that “mode of operation” includes not only customer
conduct but also employee handling of goods, and characteristics
and packing of goods themselves); Wollerman, supra, 47 N.J. at
429 (noting that either employee or customer carelessness may
have caused accident). Accordingly, the mode-of-operation
charge may be given even in the absence of evidence that the
carelessness of the plaintiff, or another patron, gave rise to
the dangerous condition. See Nisivoccia, supra, 175 N.J. at
566; Wollerman, supra, 47 N.J. at 429.
Fourth, if the mode-of-operation rule applies, it affects
the parties’ burdens of proof in two respects. The rule
relieves the plaintiff of the burden of proving actual or
23
constructive notice of the dangerous condition. Nisivoccia,
supra, 175 N.J. at 563-64; Wollerman, supra, 47 N.J. at 429;
Bozza, supra, 42 N.J. at 360. It also gives rise “to an
inference of negligence, shifting the burden of production to
the defendant, who may avoid liability if it shows that it did
‘all that a reasonably prudent man would do in the light of the
risk of injury [the] operation entailed.’” Nisivoccia, supra,175 N.J. at 564-65 (quoting Wollerman, supra, 47 N.J. at 429).5
Thus, if the rule applies in a particular case, it substantially
alters the ordinary allocation of the burdens between the
parties.
Applied here, those principles clearly establish that the
trial court did not properly apply the mode-of-operation rule
and that the Appellate Division majority correctly stated the
scope of the rule.6 There is no evidence in the trial record
5 The mode-of-operation charge that has been in use since 1970,
Model Jury Charge (Civil) 5.20F(10), supra, neither reflects
recent jurisprudence regarding the rule nor clearly explains the
purpose and application of the rule. We therefore urge the
Model Civil Jury Charge Committee to review the model charge.
6 We respectfully disagree with the concurring and dissenting
Appellate Division judge’s view that the mode-of-operation rule
applies whenever “there is a ‘risk of injury inherent in the
nature of the defendant’s operation,’” Prioleau, supra, 434 N.J.
Super. at 592 (quoting Wollerman, supra, 47 N.J. at 429-30).
Such an expansive rule would represent a departure from this
Court’s longstanding jurisprudence in negligence cases brought
by invitees. Moreover, we agree with the Appellate Division
majority that the concurring and dissenting Appellate Division
judge’s reliance on Smith, supra, 94 N.J. Super. at 464-66, is
24
that the location in which plaintiff’s accident occurred -- the
section of the restaurant traversed by plaintiff as she walked
from the counter to the restroom -- bears the slightest
relationship to any self-service component of defendants’
business. Instead, plaintiff’s testimony establishes that she
walked into the restaurant from the street, briefly stopped at
the counter, and then proceeded directly to the bathroom. As
described by plaintiff, the accident was unrelated to any self-
service component of defendants’ business.
Moreover, neither of plaintiff’s theories of liability
involves a self-service operation that might warrant a mode-of-
operation jury instruction. The theory offered by plaintiff to
justify the mode-of-operation charge, that oil and grease are
used in cooking at the restaurant and that managers regularly
examined the floor, establishes no nexus to customer self-
service or related business operations. If the accident
occurred because restaurant employees tracked oil and grease
from the kitchen to the restroom area, it resulted from the
preparation of food in a kitchen area off limits to patrons, a
component of the business in which customers played no part.
misplaced. Prioleau, supra, 434 N.J. Super. at 580-81 (citing
Smith, supra, 94 N.J. Super. at 464-66). As the panel that
decided Smith clearly stated, Smith was not a mode-of-operation
case, but a claim based on the alleged negligence of the
defendant’s employees. See Smith, supra, 94 N.J. Super. at 466.
25
While that evidence might support a finding that a plaintiff
need not show actual or constructive notice because the
condition was created by defendant or its employees, see, e.g,
Smith, supra, 94 N.J. Super. at 464-66 (holding that slip and
fall on greasy stairway caused by sawdust tracked onto steps by
defendant’s employees warranted charge), it does not implicate
the mode-of-operation rule.
Nor does plaintiff’s alternative theory of negligence that
patrons tracked water from the outdoors into the restaurant on a
rainy evening bear any relationship to self-service activities.
The potential for customers to track water into a building
during inclement weather is not contingent on a defendant’s
business model; that risk exists in virtually any facility that
admits patrons from public sidewalks or parking areas into its
facility. Thus, plaintiff’s second theory of negligence does
not support the jury charge given by the trial court.
The trial court’s characterization of the “mode of
operation” that prompted the jury charge in this case -- the
fact that there were only six tables in the Kentucky Fried
Chicken restaurant, and the presence of many people walking in
and out of the restaurant on a rainy night -- is similarly
unrelated to any self-service method of doing business. Indeed,
those features underscore that this case involves an ordinary
premises liability negligence claim and is not a mode-of-
26
operation case. Accordingly, the trial court erroneously
instructed the jury regarding the mode-of-operation rule.
B.
Plaintiff contends that even if the trial court erred in
giving the mode-of-operation charge, the charge was harmless
error that does not warrant a new trial. Plaintiff’s harmless
error argument is premised on the notion that the jury in this
case may have based its finding of negligence not on the mode-
of-operation rule, but on the different standard that governs
cases in which the defendant or its employees caused the
dangerous condition.7 In plaintiff’s view, by virtue of this
separate charge, the jury had an independent basis on which to
find negligence, and the mode-of-operation charge, even if
erroneous, may have been irrelevant to the jury’s verdict of
liability.
Based on the record at trial, we cannot conclude that the
trial court’s error was harmless. It is undisputed that there
was no evidence of actual or constructive notice in this case.
Accordingly, the jury’s finding of negligence was either
7 Under the model charge that explains that standard, which was
properly given in this case, if the jury finds that premises
“was not in a reasonably safe condition and that the
owner/occupier or his/her agent, servant or employee created
that condition through his/her own act or omission, then” the
plaintiff need not demonstrate “actual or constructive notice of
the” unsafe condition. Model Jury Charge (Civil) 5.20F(9),
supra.
27
premised on the mode-of-operation charge, or on the rule set
forth in Model Jury Charge (Civil) 5.20F(9), supra, regarding
dangerous conditions caused by the defendant or its employees.
Only one of the plaintiff’s two theories of negligence --
her contention that defendants’ employees tracked cooking oil
and grease from the restaurant’s kitchen to the restroom area –-
supported a finding that the dangerous condition was created by
the defendant or its employees. If the jury concluded that the
accident was caused by rain water tracked into the restaurant by
a customer, then it could have found liability based only on the
mode-of-operation rule. In light of plaintiff’s reliance on
that theory, the trial court’s erroneous mode-of-operation
charge may well have determined the jury’s verdict on the
question of liability.
Moreover, the mode-of-operation charge was given twice.
The jury was instructed on both of the alternative forms set
forth in Model Jury Charge (Civil) 5.20F(11), supra. The mode-
of-operation rule was accordingly overemphasized in the jury
instruction as a whole, and the two alternative charges,
presented in succession, may have confused the jury.
Because “the jury could have come to a different result had
it been correctly instructed,” Viscik, supra, 173 N.J. at 18
(citing Velazquez, supra, 163 N.J. at 688), the mode-of-
28
operation charge was not harmless error. Defendants are
therefore entitled to a new trial on the issue of liability.8
IV.
The judgment of the Appellate Division is modified and
affirmed, and the matter is remanded to the trial court for
further proceedings in accordance with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned), join
in JUSTICE PATTERSON’s opinion.
8 The mode-of-operation charge was unrelated to the jury’s
separate determination of damages, and accordingly, our holding
has no impact on that determination.
29
SUPREME COURT OF NEW JERSEY
NO. A-99 SEPTEMBER TERM 2013
ON APPEAL FROM Appellate Division, Superior Court
JANICE J. PRIOLEAU,
Plaintiff-Appellant,
v.
KENTUCKY FRIED CHICKEN, INC.,
and KFC CORPORATION,
Defendants,
and
YUM BRANDS, INC. and KFC U.S.
PROPERTIES, INC.,
Defendants-Respondents.
DECIDED September 28, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY
AFFIRMED AS
CHECKLIST MODIFIED/
REMANDED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7