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Monday, September 28, 2015

Prioleau v. Kentucky Fried Chicken, Inc. (A-99-13)

Prioleau v. Kentucky Fried Chicken, Inc. (A-99-13) (074040) Argued March 17, 2015 Decided September 28, 2015
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers the application of the mode-of-operation rule to plaintiff’s personal injury claims. Under the mode-of-operation rule, a business invitee who is injured on the premises of the business is entitled to an inference of negligence and is relieved of the obligation to prove that the business owner had notice of the dangerous condition that caused the accident.
On December 26, 2009, plaintiff and her adult son and daughter were on a trip from their home in Delaware to New Jersey. Plaintiff and her children recall that the day was rainy; plaintiff stated that there was a “torrential storm.” They stopped for dinner at a Kentucky Fried Chicken restaurant in Cherry Hill.
When plaintiff entered the restaurant, she immediately went to the counter to tell her son what she wanted to eat, and then headed to the restroom. As she approached the restroom, plaintiff slipped and fell, landing on her buttocks and hands. According to plaintiff, the floor near the restroom was greasy and wet, and she testified that it was slippery “like I was on ice.”
Although she testified that she was in pain, plaintiff did not seek immediate medical attention. Plaintiff continued on their trip. After returning to Delaware, plaintiff sought medical treatment and was referred to a neurosurgeon who prescribed physical therapy. Plaintiff alleged that she suffers constant pain in her lower back, takes pain medication, and that the pain has affected her ability to perform some of the tasks assigned to her work.
Managers and employees of Kentucky Fried Chicken testified that employees are expected to regularly monitor customer areas and to mop up spills and excess water. One manager testified that oil was used to cook the food served and sometimes spilled on the kitchen floor. She acknowledged that kitchen employees could “possibly” track cooking oil to customer areas when they used the restrooms.
Plaintiff filed this action asserting a negligence claim and alleging that defendants failed to exercise reasonable care. The matter was tried before a jury over three days. At the jury charge conference, plaintiff’s counsel claimed plaintiff was entitled to a mode-of-operation jury charge because oil may have been tracked from the restaurant kitchen to the floor near the restroom. The trial court agreed, also citing testimony that the employees “should have a cone out on a rainy day.” Instead of choosing one of the alternative model charges on the mode-of- operation rule set forth in the Model Jury Charge (Civil), the trial court gave both alternatives in sequence. In addition, the trial court separately instructed the jury based on the charge, “Notice Not Required When Condition is Caused by Defendant,” which permits a plaintiff to recover without showing that the defendant had notice of the unsafe condition if the owner or employee created the unsafe condition through his or her own act or omission.
The jury found defendants negligent and defendants appealed. A divided Appellate Division panel reversed the trial court’s determination on the mode-of-operation rule, vacated the judgment and remanded for a new trial. A dissenting member of the panel viewed the majority’s construction of the mode-of-operation rule too limited and deemed the rule applicable. Plaintiff appealed as of right based on the dissenting opinion.
HELD: The mode-of-operation rule applies only in situations where the customer foreseeably serves himself or herself, or otherwise directly engages with products or services unsupervised by an employee. Plaintiff’s theories of liability did not involve a self-service operation that might warrant a mode-of-operation jury instruction. Because the trial court’s erroneous mode-of-operation charge may well have determined the jury’s verdict, defendant is entitled to a new trial on the issue of liability.
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1. The sole issue raised by this appeal is whether the trial court’s decision to charge the jury on the mode-of- operation rule constituted reversible error. Not every improper jury charge warrants reversal. A new trial is warranted only where the jury could have come to a different result had it been correctly instructed.  
2. Ordinarily, an invitee seeking to hold a business proprietor liable in negligence must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. The burden imposed on a plaintiff invitee is substantially altered in settings in which the mode-of- operation rule applies. The rule gives rise to a rebuttable inference that the defendant is negligent, and obviates the need for the plaintiff to prove actual or constructive notice.  
3. In all of its prior mode-of-operation cases, this Court has emphasized the self-service nature of the defendant’s business. The Appellate Division has taken a similar approach, applying the rule to cases arising from injuries in which defendants conduct self-service operations. One principle derived from these cases is that the mode-of- operation rule is not a general rule of premises liability, but a special application of foreseeability principles in recognition of the extraordinary risks that arise when a defendant chooses a customer self-service business model.  
4. The trial court here did not properly apply the mode-of-operation rule and the Appellate Division majority correctly stated the scope of the rule. There is no evidence in the trial record that the location in which plaintiff’s accident occurred bears the slightest relationship to any self-service component of defendants’ business. Moreover, plaintiff’s theories of liability do not involve a self-service operation that might warrant a mode-of-operation jury instruction.  
5. Plaintiff contends that even if the trial court erred in giving the mode-of-operation charge, it was harmless error that does not warrant a new trial. That argument is premised on the notion that the jury may have based its finding of negligence not on the mode-of-operation rule, but on the different standard that governs cases in which the defendant or its employees caused the dangerous condition. Based on the record at trial, the court cannot conclude that the error was harmless. The jury could have found liability based only on the mode-of-operation rule. Defendants are therefore entitled to a new trial on the issue of liability.  
The judgment of the Appellate Division is AFFIRMED as MODIFIED, and the matter is REMANDED for further proceedings consistent with the Court’s opinion.