Prioleau v. Kentucky Fried Chicken, Inc., 434 N.J. Super. 558 (App. Div. 2014). In Arroyo v. Durling Realty, LLC, 443 N.J. Super. 238 (App. Div. 2013), discussed here, Judge Sabatino discussed the “mode of operation” theory of negligence liability. In essence, the doctrine eases the burden of proof on a plaintiff who is injured on commercial property where, “as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition, or a demonstrable pattern of conduct or incidents.” In such circumstances, it is unnecessary to prove that the defendant was on notice of the dangerous condition that allegedly caused the injury. Yesterday, in a 2-1 decision, the Appellate Division overturned a jury verdict against Kentucky Fried Chicken, Inc. (“KFC”), holding that the jury charge on mode of operation liability was erroneous. Judge Lihotz wrote the majority opinion, in which Judge Sapp-Peterson joined. Judge Hoffman filed a dissent and would have upheld the jury’s verdict.
Plaintiff and her two adult children entered a KFC restaurant. While the children went to the counter to place an order, plaintiff went to the restroom. As she approached it, however, she started “to slip and slide like [she] was on ice.” She fell and injured herself. Plaintiff filed suit for her injuries. Her theory was that the floor near the restroom was greasy because KFC did not have a separate restroom for employees, and employees who had grease on their shoes from working in the kitchen tracked that grease to the restroom area, as a result of which plaintiff fell and injured herself.
As a result, plaintiff requested and the Law Division gave a “mode of operation liability” charge. The jury returned a verdict for plaintiff, awarding $250,000 and finding defendants 51% negligent, after the Law Division had denied KFC’s motion for a directed verdict. Defendants appealed, and the Appellate Division reversed in a split decision.
All three judges agreed that the Law Division had correctly denied the defense motion for a directed verdict. Under the applicable standard of review, which requires the court to accept as true all evidence presented by the plaintiff and the legitimate inferences from that evidence, the proofs were sufficient to allow a plaintiff’s verdict. But, viewing the jury charge as a whole and determining that the mode of operation liability charge “had the capacity to mislead the jury,” the majority reversed the jury verdict due to the erroneous jury charge.
Judge Lihotz stated that the theory is a “very limited exception to the traditional rules of business premises liability.” She reviewed prior cases and determined that their common thread was “whether the defendant’s identified business operations encompassed self-service facilities that led to a risk of harm to the plaintiff.” Although KFC did use oil in the kitchen and spills sometimes occurred, “these facts do not implicate customer conduct in the operation of the business, which is the rationale underlying application of the mode-of-operation doctrine.” Regardless, plaintiff’s evidence raised, at most, only the “possibility” that the greasy floor resulted from a kitchem employee tracking grease to the restroom area, not the “probability” that Arroyo and other cases require. The mere fact that KFC operated a fast-food restaurant did not justify a mode of operation charge, as the Law Division apparently believed.
In dissent, Judge Hoffman agreed that mode of operation liability does not apply merely because KFC operates a fast-food business. But he disagreed that such liability is “limited to businesses where customers use self-service facilities.”
The dissent gives plaintiff an appeal as of right to the Supreme Court on that issue. If she files that appeal, the Supreme Court will have the final word.