A federal judge in New Jersey granted summary judgment to Walmart in a personal injury suit, finding that the mode of operation rule does not apply to a woman's claim for injuries allegedly caused by another shopper operating a motorized cart.

According to the Nov. 29 opinion by U.S. District Judge William J. Martini of the District of New Jersey, plaintiff Talia Pena was injured while shopping in a Secaucus Walmart store. Pena bent over to smell body sprays on a bottom shelf near the self-checkout lanes when an unidentified female drove a motorized cart into her, causing her injuries. Pena alleged that the female driver could not see in front of her because she had paper products stacked so high.

Pena filed a negligence action in state court on Sept. 11, 2019, which was removed to federal court based on diversity jurisdiction. Martini wrote in his opinion that, in order to hold a business owner liable, a plaintiff ordinarily must demonstrate that "the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." But under the mode of operation rule, according to Martini, a plaintiff need not prove actual or constructive notice.

"To invoke that rule, the plaintiff must show there was a 'reasonable probability' that the dangerous condition would occur 'as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents,'" Martini said, citing Bozza v. Vornado and Layden v. Target.

"Generally, merely providing shopping carts as a self-service equipment does not alone increase the risk of a dangerous condition to warrant application of the mode of operation rule," Martini said. "Rather, application of the mode of operation rule requires that some aspect of the store's self-service operation created a substantial risk of injury."

Martini stated that Pena has not identified any evidence to support her contention that Walmart's practice of providing motorized shopping carts, as opposed to nonmotorized carts, is an aspect of the store's self-service operation that creates a substantial risk of injury. The judge additionally stated that Pena offered no evidence that Walmart invited overstuffing carts by supplying motorized carts.

And finally, Martini dismissed Pena's contention that the mode of operation applies because her injury occurred in a self-service location identical to one in Nisivoccia v. Glass Gardens. In that case, the New Jersey Supreme Court held that the mode of operation rule applied.

"However, the mode of operation rule requires a 'nexus between self-service components of the defendant's business and a risk of injury in the area where the accident occurred,'" Martini said. "Thus, in Nisivoccia, the mode of operation rule was applicable, not merely due to where the injury occurred, but because the injury occurred in a location of the store where customers selected and bagged loose grapes that 'are reasonably likely to fall to the ground during customer or employee handling' creating a dangerous condition."

Martini found that Pena did not show any nexus between the self-service component of providing motorized carts and the risk of injury near the checkout area. The judge concluded that the mode of operation rule is not applicable here and, therefore, she must prove constructive notice to establish liability. Pena, according to Martini, did not provide any evidence of how long the customer had the overstuffed cart prior to her injury.

Martini concluded Walmart had no constructive notice of the condition and therefore granted summary judgment to the defense.

Counsel to Pena, solo practitioner George Rios, and counsel to Walmart, Floyd G. Cottrell of Cottrell Solensky, did not immediately respond to a request for comment.