In September 2007, I published an article in the New Jersey Law Journal titled, “Store Owners Face Difficult Defense: Getting slip and fall dismissed at summary judgment is nearly impossible.” That article outlined the history of New Jersey’s “mode of operation” rule, which holds that in a slip/fall case, a plaintiff is not obligated to prove actual or constructive notice of a hazardous condition, if the day-to-day operations of a defendant’s retail store create certain dangerous conditions, which allegedly caused the fall. See Wollerman v. Grand Union Stores, 47 N.J. 426 (1966) (plaintiff slipped on a string bean on a grocery store floor); O’Shea v. K Mart Corp., 304 N.J. Super. 489 (App. Div. 1997) (a golf bag fell on plaintiff in a department store); Ryder v. Ocean Cnty. Mall, 340 N.J. Super. 504 (App.Div.), certif. denied, 170 N.J. 88 (2001) (plaintiff slipped on an “Orange Julius” beverage in a shopping mall); Nisivoccia v. Glass Gardens, 175 N.J. 559 (2003) (plaintiff slipped on a grape on a grocery store floor).

For nearly five decades, New Jersey courts have expanded this legal doctrine of law which dispenses with the question over how long the hazard was in existence, and/or whether the defendant had the opportunity to remedy the hazard. Essentially, lack of notice is not a material defense, so long as the plaintiff can show that there was a “nexus” between the store’s business operations and the alleged hazard. Now, utilizing the mode-of-operation doctrine, all that matters is whether the establishment’s operations could have generated the hazard in question. As the previous article points out, retail stores have a nearly impossible task to win on summary judgment motions.

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