October 9, 2008
ODELIA REBOH AND MARC ANDRE AZOULAY, WIFE AND HUSBAND, PLAINTIFFS-APPELLANTS,
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3164-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Skillman and Collester.
Plaintiffs appeal from a final judgment memorializing a jury verdict of no cause of action in a supermarket slip and fall case. Plaintiffs' only argument is that the trial court erred in failing to submit a "mode of operation" instruction to the jury. This argument is clearly without merit and does not warrant extended discussion. R. 2:11-3(e)(1)(E).
A "mode of operation" jury instruction is appropriate only when "a substantial risk of injury is inherent in a business operator's method of doing business." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 564 (2003). A supermarket's sale of string beans from open bins on a self-service basis, which creates a likelihood of beans falling to the floor, is one example of a business operation that creates such a risk. See Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-30 (1966). Another example is a supermarket's sale of grapes in open air-vented bags, which creates a likelihood of grapes falling to the floor when the bags are taken out of a shopping cart at the checkout counter. Nisivoccia, supra, 175 N.J. at 565.
Plaintiff made no showing that her slip and fall was caused by such a risky method of doing business. Plaintiff's own witness, Mirriam Loeb, testified that the slip and fall occurred on a small slick of clear liquid. There was no evidence regarding the source of this liquid and thus no evidence that defendant's mode of operation made the presence of a clear liquid on the floor a reasonably anticipatable hazardous condition that the store should have taken steps to guard against. Moreover, there was no evidence as to how long the clear liquid was on the floor before plaintiff's accident or that this condition was of such a nature that it should have been discovered by a store employee walking the aisles looking for hazardous conditions.
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