What is the “mode of operation” Inference?
Chief Justice Weintraub wrote in Wollerman:
Where a substantial risk of injury is implicit in the manner in which a business is conducted, and on the total scene it is fairly probable that the operator is responsible either in creating the hazard or permitting it to arise or to continue, it would be unjust to saddle the plaintiff with the burden of isolating the precise failure. The situation being peculiarly in the defendant’s hands, it is fair to call upon the defendant to explain, if he wishes to avoid an inference by the trier of the facts that the fault probably was his.”
Did the “mode of operation” inference help these plaintiffs win?
On the morning of June 29, 2008, plaintiff went to a ShopRite store in Passaic to purchase ice cream. After reaching into the freezer to get two containers of ice cream, plaintiff slipped and fell while walking away. Plaintiff did not notice anything on the floor before she fell, but after a friend helped her up, she noticed her pants were wet on her left side and observed a puddle of water approximately 8 by 10 inches. After the fall, plaintiff was taken to a local hospital and treated.” Tina Lee v. Shoprite, No. A-0925-11T2 [Larry's note-NO]
The plaintiff, Mrs. Wollerman, while shopping for green peppers in the vegetable section of the defendant’s supermarket, slipped and fell when she stepped on a string bean. Nearby, but not waiting on her, was an employee of the market. The proofs did not show how the bean fell to the floor, or how long it was there before her misadventure.“ Wollerman v. Grand Union Stores, Inc., 47 N.J.426 (1966) [Larry's note-YES]
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.” Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003) [Larry's note-YES]
The plaintiff was headed toward an aisle that had car seats when she slipped and fell on what she described as a jelly-like substance. A store employee came to her assistance, cleaned up the substance, and called an ambulance and the police. The responding police officer prepared a report that indicated that the store employee told him that the plaintiff fell on a liquid substance that was spread out over several aisles of the store. It looked like water but was oily when touched. The police report also noted that no liquid products were sold in the area of the store where the plaintiff fell. ” Valentin v. Toys “R” Us, Inc., No. A-3326-07T3 (App. Div. July 15, 2010). This quotation was taken from a super article written by Brian P. Sharkey, Esquire entitled, “Another Step in the Slip and Fall Jurisprudence.” [Larry's note-App. Div. reversed order for summary judgment in favor of defendant]
Commentary
Great tool for plaintiff. Make sure the facts support the inference. Remember, the burden of proof rests with the plaintiff to prove the dangerous condition was caused by a product sold by the business.
