Appellate Division Rejects Application of Mode-of-Operation Doctrine to Sub Shop

Appellate Division Rejects Application of Mode-of-Operation Doctrine to Sub Shop

In a recent unpublished decision, the Appellate Division declined to apply the mode of operation doctrine to a sandwich shop. Hockman v. Burrellys Ltd. Liability Co., No. 31-2-4371, (N.J. Sup. Ct. App. Div. October 2, 2017). Louise Hockman fell and severely fractured her right leg while exiting a Tastee Sub shop. It was not clear what exactly caused her to slip. She underwent surgery, which required placement of hardware into bone. Her recovery was long; she used a walker for approximately ten months and could not drive for two years after the fall. At trial, a jury awarded Ms. Hockman $1.28 million in damages and found the shop owner (Burrellys) 80% responsible for her injuries.

Burrellys appealed, arguing that the trial judge had inappropriately allowed the jury to consider evidence regarding the mode of operation doctrine. Normally a plaintiff who slips and falls at a business is required to prove both the existence of a dangerous condition and that the business owner had notice of that condition. The mode of operation doctrine relieves the plaintiff of the notice requirement in situations where the business’s “mode of operating” makes it likely that dangerous conditions will arise.

Courts have commonly used the doctrine in cases involving self-service counters. Think of a salad bar at a supermarket; the doctrine says that the supermarket should know that its customers are likely to drop things when they help themselves. Therefore, if a customer slips on a crouton and gets hurt, he or she does not necessarily have to prove the produce manager knew that specific crouton was on the floor, only that manager should have been looking out for croutons and failed to do so.

In the Hockman case, the appellate court held that the mode of operation doctrine did not apply because the sub shop did not operate like the salad bar in the example above: the shop only served food to go; sandwiches were prepared behind a counter and wrapped before being handed to customers; there was a self-service refrigerator that contained salads and beverages, but they were in sealed containers.  Although Ms. Hockman testified that her pants were wet after she hit the ground, she had no idea what substances caused her to fall. Without evidence that Tastee Sub’s mode of operating made dangerous conditions likely, the court found that Ms. Hockman should have been required to prove it had notice. The court reversed the verdict and ordered that the case will have to be retried.