On certification to the Superior Court, Appellate Division.
The issue in this appeal is whether plaintiff was entitled to an inference of negligence under Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966).
Plaintiff slipped and fell on loose grapes when approaching the checkout lanes in a supermarket. Grapes were displayed in the produce area in open-top, vented plastic bags. Plaintiff reported the incident to the employee at the checkout register and to the store manager. At trial, the manager acknowledged that grapes may fall onto the store floor during the process of being handled by either customers or store employees and that this tended to happen in the produce aisle or at the checkout area. The manager also described the procedures followed by store employees in cleaning up spillage or other potential hazards.
At the close of testimony, plaintiff requested and was denied an inference of negligence. The trial court distinguished Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966), reasoning that the accident did not occur in the produce aisle nor sufficiently close to a checkout cashier to have constituted part of the self-service operation. Defendant was granted a directed no-cause verdict because plaintiff did not produce any evidence of the store's actual or constructive notice of a dangerous condition. The Appellate Division affirmed in an unpublished opinion.
The Supreme Court granted defendant's petition for certification.
HELD: The mode-of-operation rule entitled plaintiff to an inference of negligence. The trial court erred in entering a directed verdict for defendant. The judgment of the Appellate Division is reversed and the matter is remanded for further proceedings.
1. When a substantial risk of injury is inherent in a business operator's method of doing business, the plaintiff is relieved of showing actual or constructive notice of the dangerous condition. Under this mode-of-operation rule, the plaintiff is entitled to an inference of negligence, shifting the burden of production to the defendant, who must then come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard. The question of the adequacy of the store's efforts to exercise due care was one for the jury. (Pp. 5-7)
2. A mode-of-operation jury instruction is appropriate when loose items that are reasonably likely to fall to the ground during customer or employee handling would create a dangerous condition. In Wollerman, the location was the produce area. But the same considerations apply to the checkout area of a supermarket. In the instant case, it was foreseeable that loose grapes would fall to the ground near the checkout area, creating a dangerous condition. In concluding that the location of the wayward grapes was too far removed from the actual cashier counter to be attributable to a mode-of-operation involving the handling of goods by customers and employees during checkout, the trial court failed to take into account the fact that grapes can be expected to roll if they fall to the ground. "Mode-of-operation" thus includes 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. (Pp. 8-9)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for further proceedings.
JUSTICE LONG filed a separate, concurring opinion stating that all plaintiff needed to show was that the risk of injury relieving her of the burden of production under the mode-of-operation rule was inherent in the packaging of the produce; the location in the supermarket and the mobility of the grapes are essentially irrelevant.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, ZAZZALI and ALBIN join in Justice LaVECCHIA's opinion. JUSTICE LONG filed a separate concurring opinion. JUSTICE VERNIERO did not participate.
The opinion of the court was delivered by: LaVECCHIA, J.
When approaching the checkout lanes in a supermarket, plaintiff Katherine Nisivoccia slipped and fell on some loose grapes lying about. The proofs did not show how the grapes came to be on the floor or how long they had been there. It was undisputed, however, that in the produce area grapes were displayed in open-top, vented plastic bags that permitted spillage. The question before us is whether Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966), applied, entitling plaintiff to an inference of negligence because the store should have anticipated that careless handling of grapes was reasonably likely during customer checkout, creating a ...