NJ Law Review Update
Dear
Colleagues:
HOLDING: Defendant found
not liable under the “mode of operation” theory when a
patron slips on a phone calling card that was discarded
outside of the defendant’s store on the sidewalk.
Arroyo v. Durling Realty, LLC, Appellate Division, decided
October 23, 2013.
The
Appellate Division in the matter of Arroyo v. Durling
Realty LLC, found that the mode of operation theory
was not applicable in the instance of a plaintiff slipping
on a phone calling card that was discarded outside of the
defendant’s store on the sidewalk. Rather, the Appellate
Division opined that the ordinary principles of premises
liability would be applied to the matter.
The plaintiff alleges that she slipped on a discarded
calling card after she exited the defendant Durling
Reality LLC’s Quick Check convenience store. The plaintiff
held the position that the presence of the card on the
sidewalk created an unreasonably dangerous condition. The
plaintiff argued that the mode of operation theory should
be applied because the phone cards were displayed on racks
near the store’s cash register and exit doors. The
plaintiff retained a liability expert who opined that the
store should have had trash cans at the exit and a regular
sweeping schedule.
The defendants produced evidence that demonstrated that
the front of the store was swept of cigarette butts and
other debris approximately 10 or 15 times a day and that
the entire front sidewalk and parking lot were swept twice
a day. In addition, at the end of each shift employees
were required to sweep the area outside to make sure it
was clean and the outside was vacuumed every two or three
days. No proof was offered that any store employee was
aware that the calling card was on the sidewalk in advance
of the plaintiff’s accident. The defendant moved for
Summary Judgment when granted by the Court. Thereafter
plaintiff appealed.
The Appellate Division noted that the record lacked
competent proof that the defendant failed to exercise due
care in the manner in which it maintained the sidewalk
outside the store. Moreover, the Appellate Division
disregarded conclusiory statements of the plaintiff’s
experts criticizing the procedures because they were not
grounded in and identified by objective standards.
The Appellate Division opined that this was not a mode of
operation liability case because it did not occur inside
the store. Rather, it occurred outside on the sidewalk. It
is not a self service case like a cafeteria because the
person who originally purchased the phone card would have
had to take it off the display rack, present it to the
cashier at checkout and have the card activated by the
cashier before taking it out of the store. Moreover, it is
not reasonable for the plaintiff to have asserted that the
convenience store’s method of doing business created the
alleged hazardous condition on the sidewalk. What a
purchaser of a phone card chose to do after leaving the
store is not an integral feature of the stores retail
operation. Therefore the Appellate Division affirmed the
trial court’s granting of Summary Judgment.
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