NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2493-14T2
RICHARD WALKER and KATHLEEN WALKER, his wife, APPROVED FOR PUBLICATION Plaintiffs-Appellants, April 1, 2016
v. APPELLATE DIVISION
COSTCO WHOLESALE WAREHOUSE, Individually and d/b/a COSTCO OF OCEAN TOWNSHIP,1
Defendant-Respondent. ____________________________________
Argued March 14, 2016 – Decided April 1, 2016
Before Judges Sabatino, O'Connor and Suter.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2244-12.
Rui O. Santos argued the cause for appellants (Shebell & Shebell, LLC, attorneys; Thomas F. Shebell, III, of counsel; John H. Sanders, II, of counsel and on the briefs).
Robert A. Ballou, Jr., argued the cause for respondent (Garvey Ballou, attorneys; Mr. Ballou, of counsel and on the briefs).
1 Defendant Costco Wholesale Corp. was improperly pleaded as Costco Wholesale Warehouse, individually and doing business as Costco of Ocean Township ("Costco"). The opinion of the court was delivered by
SABATINO, P.J.A.D.
In this slip-and-fall case, plaintiff appeals a judgment
for the defendant wholesale store entered after the trial court
declined his request to instruct the jury with a mode-of-
operation liability charge. For the reasons that follow, we
vacate the judgment and order a new trial at which the requested
jury charge shall be given. As part of that charge, the court
shall ask the jury to make a predicate factual determination of
whether the substance on which plaintiff slipped came from a
food sample offered to customers at a stand within the store.
I.
Although some of the pertinent facts are disputed, the case
is uncomplicated and it arises from a rather commonplace
situation. At approximately 6:00 p.m. on Friday, October 7,
2011, plaintiff2 Richard Walker went shopping with an
acquaintance in a warehouse store in Ocean Township. The store
is owned or operated by defendant Costco Wholesale Corp.
("Costco"). Plaintiff and his acquaintance were purchasing
items for an upcoming breakfast fundraiser.
2 We refer to Richard Walker as "plaintiff" even though the complaint names his wife Kathleen as a co-plaintiff on her per quod claim.
2 A-2493-14T2 According to plaintiff's trial testimony, while he was in
the course of shopping he passed a small table on which a vendor
was offering what appeared to be free samples of cheesecake.
The cheesecake samples were contained in small paper cups.
Plaintiff walked past the display stand, apparently without
taking a sample, and proceeded toward an area looking for
packages of bacon. He was not pushing a shopping cart, which he
had left with his acquaintance. He was wearing sneakers at the
time.
Plaintiff testified that, as he turned a corner, he slipped
on a substance on the floor. Plaintiff initially perceived that
the substance had "a white appearance like a yogurt-based
product." As he fell to the floor, plaintiff noticed that the
side of his jogging pants were "wet" and "smeared" from the
substance, although he "couldn't tell [the jury] exactly what it
was."
Plaintiff did not estimate in feet the distance from the
spot where he fell to the cheesecake stand. He did indicate on
a diagram admitted into evidence that the stand was in the
diagram's upper right area and that his fall occurred in the
center right area, referred to as the store's "D-19" section.
As he fell, plaintiff grabbed the handle of a nearby cart.
He felt his right shoulder pulling out of its socket, which he
3 A-2493-14T2 attempted to put back into position with his other arm. He was
later diagnosed with an anterior dislocation of his right
shoulder, which he contended was caused by the fall.
The person who accompanied plaintiff to the Costco store
that day was not with him the moment when he fell. She
therefore did not observe the accident. Upon discovering that
plaintiff had fallen, the acquaintance went over to the store's
food court and requested a bag of ice for plaintiff. The ice
bag was supplied and placed on his ailing shoulder. The
acquaintance did not inspect the area of the floor where
plaintiff fell. She was not asked during her trial testimony
whether she recalled seeing a table with free cheesecake
samples.
Defendant presented testimony from several witnesses,
including an "administration manager" of the store. He
testified that he encountered plaintiff at the accident location
and that plaintiff told him that he fell on a "liquid." The
manager observed no liquid on the floor while he was helping
plaintiff. However, plaintiff's acquaintance testified, without
objection, that another unidentified employee had stated in her
presence that he had "cleaned up that area" after plaintiff's
fall. See N.J.R.E. 803(b)(4) (delineating the hearsay exception
for a statement by an opposing party's agent or employee
4 A-2493-14T2 concerning a matter within the scope of that declarant's agency
or employment, made during the existence of the relationship).
The administration manager explained that the company's
maintenance policies require employees to walk the store on an
hourly basis and inspect for trash and spills on the floors.
While performing such hourly safety walks, the employees use a
maintenance wagon equipped with a broom, mop and cat litter to
soak up spills. According to the store's "floor walk sheet" for
the day of the accident, the last floor inspection before
plaintiff's fall was completed at 5:52 p.m. Several other store
employees testified for the defense, and none of them observed
any spills or substances on the floor in the area where
plaintiff fell.
The defense witnesses confirmed that Costco typically has
vendors giving out free food samples at various locations
throughout the store. According to the store's "hard line
manager," the stands are usually staffed by demonstrators
between the hours of 10:30 or 11:00 a.m. to about 5:00 or 6:00
p.m.3 The demonstrators are supplied with a mobile "caddy,"
brooms, dust mops, paper towels, and cleaning supplies. They
3 Another defense witness, the assistant general manager, testified that the demonstrators would have been "off the floor for the most part by 5[:00], 5:30 on that day."
5 A-2493-14T2 are expected to be responsible for maintaining the areas around
their displays.
One defense witness who performs safety walks at the store
described the offering of samples as a "common" practice
"throughout the store." He stated that the samples are provided
in "bite size pieces," and that "most of the time [customers]
just pop it in their mouth." He acknowledged that sometimes
customers, particularly children, may drop the food on the
floor, but that the demonstrators typically "make sure that they
pick[] up anything that fell."
Approximately eight to fifteen kinds of free food samples
are typically given out on the sales floor at this Costco store.
The assistant general manager acknowledged that Costco generates
revenues from the sales of products that some customers buy
after trying the vendors' samples. He also acknowledged that
there are no restrictions on customers walking around the store
with samples they may take from the display stands.
Plaintiff contended at trial that Costco was negligent in
allowing a slippery substance to create a dangerous condition on
the floor, which could cause an injury to the store's business
invitees. He argued that the store's maintenance practices were
inadequate and unreasonable, and that the store had at least
6 A-2493-14T2 constructive notice of the slippery condition that caused him to
lose his footing.
As an alternative to this theory of ordinary negligence,
plaintiff sought to argue to the jury that the store had created
a hazardous condition by its "mode of operation" in giving out
free food samples to customers. Under this alternative theory,
plaintiff sought to be relieved of his burden of proving actual
or constructive notice of the presence of the slippery substance
on which he allegedly fell. Plaintiff specifically requested in
this regard that the court issue Model Civil Jury Charge
5.20F(11) to the jurors. That model instruction reads as
follows, in two alternative versions:4
11. Notice Not Required When Mode of Operation Creates Danger
A proprietor of business premises has the duty to provide a reasonably safe place for his/her customers. If you find that the premises were in a hazardous condition, whether caused by defendant's employees or by others, such as customers, and if you find that said hazardous condition was likely to result from the particular manner in which defendant's business was conducted, and if you find that defendant failed to take reasonable measures to prevent the hazardous condition from arising or failed to take reasonable measures to discover and correct such hazardous condition, then
4 Plaintiff did not specify at the charge conference which alternative he wanted the court to charge. In any event, the variations in the wording do not affect our analysis.
7 A-2493-14T2 defendant is liable to plaintiff. In these circumstances defendant would be liable even if defendant and his/her employees did not have actual or constructive knowledge of the particular unsafe condition, which cause[d] the accident and injury.
[Alternate Charge]
A proprietor of business premises has the duty to provide a reasonably safe place for his/her customers. If you find that a hazardous condition was likely to arise from the particular manner in which defendant's business was conducted and that defendant's employees probably were responsible either in creating such hazardous condition or permitting it to arise or to continue, defendant is liable to plaintiff if defendant failed to exercise reasonable care to prevent such hazardous condition from arising or failed to exercise reasonable care to discover and correct such hazardous condition. In these circumstances defendant would be liable even if defendant and his/her employees did not have actual or constructive knowledge of the particular unsafe condition, which caused the accident and injury.
[Where Appropriate Add:]
If you find that defendant did exercise reasonable care in . . . light of the risk of injury reasonably to be foreseen from the particular manner in which defendant conducted his/her business, then defendant would not be liable to plaintiff unless you find (a) that the hazardous condition was actually caused or created by defendant's employees or (b) that defendant had actual or constructive notice of the hazardous condition for sufficient time to have corrected it and failed to do so.
8 A-2493-14T2 [Model Jury Charges (Civil), 5.20F(11), "Notice Not Required When Mode of Operation Creates Danger" (1970).]
Defendant opposed the issuance of a mode-of-operation
charge, contending that the factual context here does not
warrant such a jury instruction. Among other things, defendant
has argued that plaintiff's recollection of slipping on a white
"yogurt-based" product lacks a sufficient nexus to the
cheesecake samples. Moreover, the defense has contended that
the activity of providing such samples does not comport with the
kinds of "self-service" retail activities that have supported a
mode-of-operation charge under the applicable case law.
The court ruled at the charge conference that it would not
issue a mode-of-operation instruction. The court found it
significant that plaintiff had testified that he was unsure of
what he fell on, having only described it as a "white yogurt-
like substance."5 The court recognized that the store permits
customers to walk through the sales area with food and drink,
but recalled no testimony that would "match up" the free items
provided that day with the substance on the floor that caused
plaintiff to slip.
5 We discern no meaningful difference between the court's use of the term "yogurt-like" and plaintiff's phrasing as "yogurt- based."
9 A-2493-14T2 Accordingly, the court instructed the jurors in the ensuing
charge on traditional principles of premises liability,
negligence, and causation. The negligence portion of the charge
included plaintiff's obligation to prove defendant's actual or
constructive notice of a dangerous condition. See Model Jury
Charges (Civil), 5.20F(8), "Notice of Particular Danger as
Condition of Liability" (2014).
The jury rendered a verdict for defendant, finding on the
first question listed on the verdict form that plaintiff had
failed to prove that defendant was negligent on the date of his
accident. This form did not include a separate interrogatory
asking whether plaintiff had proven the subsidiary element of
actual or constructive notice. Because of this, we cannot tell
from the verdict form whether the jurors voted in favor of
defendant on the negligence question because of a failure by
plaintiff to prove the element of notice or because it found
that Costco's maintenance practices were reasonable, or for both
reasons or some other reason or reasons.
Plaintiff moved for a new trial, reiterating his argument –
this time with briefing – that the jurors should have been
afforded a chance to evaluate whether defendant was liable under
a mode-of-operation theory. Again, the trial court rejected
plaintiff's argument, emphasizing its view that plaintiff had
10 A-2493-14T2 not sufficiently shown the required nexus between his accident
and Costco's method of doing business in using food vendors to
distribute free food samples.
The court faulted plaintiff for being "unable to decisively
identify the substance that he . . . slipped on[.]" The court
noted that "no other evidence was introduced to show what the
substance was or where it might [have] come from other than the
suggestion that there was a cheesecake sample display nearby."
As a matter of timing, the court further alluded to its
recollection of the evidence that "vendors are all required to
be . . . off the sales floor by 4:30 [p.m.] and this accident
happened well after 6 o'clock [p.m.]" Lastly, the court found
it significant that "the item that the plaintiff claimed was a
yogurt-like substance" was alleged to be on the floor "in an
area where there were completely other items being sold, i.e.
fish and frozen goods or cold goods," thus reflecting a lack of
nexus between Costco's business operations and plaintiff's harm.
II.
On appeal, plaintiff contends that the trial court erred in
rejecting his request for a mode-of-operation charge.
Affording, as we must, all favorable reasonable inferences to
plaintiff from the factual record, and with the guidance of
applicable case law, including the Supreme Court's recent
11 A-2493-14T2 opinion in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J.
245 (2015), and other case law, we agree with plaintiff that a
mode-of-operation charge was called for in this case. Such a
charge is legally warranted here, provided that it include a
specific instruction to the jurors to determine, as a factual
predicate, whether the substance on which plaintiff slipped came
from a free food sample offered to customers by one of the
demonstrators.
A.
"It is fundamental that '[a]ppropriate and proper charges
to a jury are essential to a fair trial.'" Velazquez v.
Portadin, 163 N.J. 677, 688 (2000) (alteration in original)
(quoting State v. Green, 86 N.J. 281, 287 (1981)); see also
Washington v. Perez, 219 N.J. 338, 350-51 (2014) (noting that
"[o]ur law has long recognized the critical importance of
accurate and precise instructions to the jury"). "A charge is a
road map to guide the jury, and without an appropriate charge a
jury can take a wrong turn in its deliberations[.]" Das v.
Thani, 171 N.J. 518, 527 (2002) (quoting State v. Martin, 119
N.J. 2, 15 (1990)).
Our task in this appeal is to determine whether the trial
court erred in declining to charge the jury on mode-of-operation
principles as plaintiff had requested, and, if so, whether that
12 A-2493-14T2 charging error "may have affected the trial's result."
Washington, supra, 219 N.J. at 351. For the reasons that
follow, we are persuaded that the charge should have been given
in this case and that its omission was clearly capable of
affecting the verdict on liability. R. 2:10-2 (recognizing the
appellate court's authority to grant a new trial for errors
"clearly capable" of producing an unjust result).
In civil matters, the trial court should give an
instruction that appropriately guides the jury on the legal
basis of a plaintiff's claim or a defendant's affirmative
defense, so long as there is a reasonable factual basis in the
evidence to support that claim or defense. See, e.g., Baglini
v. Lauletta, 338 N.J. Super. 282, 305-06 (App. Div.) (ruling
that the defendant would be entitled to an apportionment jury
charge on remand in a negligence case provided there is a
"rational basis for the jury to conclude that . . . fault . . .
can be apportioned"), certif. denied, 169 N.J. 607 (2001); see
also Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 565-66
(2003) (holding that the plaintiff was entitled to a mode-of-
operation instruction because spillage of produce was a
foreseeable risk and the reasonableness of the defendant's
exercise of care was for the jury to decide).
13 A-2493-14T2 The trial court must defer to the jurors as the ultimate
fact-finders in deciding whether the evidence presented in
support of a claim or a defense is credible, provided that such
a reasonable basis exists to believe it. The court's
instructions must "plainly spell out how the jury should apply
the legal principles to the facts as it may find them[.]"
Velazquez, supra, 163 N.J. at 688 (emphasis added); see also Sun
Coast Merchandise Corp. v. Myron Corp., 393 N.J. Super. 55, 82-
83 (App. Div. 2007) (quoting same), certif. denied, 194 N.J. 270
(2008).
In essence, the court's function in deciding whether to
provide a factually-grounded liability instruction is akin to
its role in deciding whether to grant a motion for summary
judgment or for a directed verdict. The requested instruction
generally should be given, as long as there is a reasonable
basis in the evidence to support the predicate factual
contention that can trigger the charge, in light of the proofs
and all reasonable inferences that may be drawn from those
proofs. Cf. R. 4:46-2 (delineating the well-established summary
judgment standard); Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 523 (1995) (same); Frugis v. Bracigliano, 177 N.J.
250, 269-70 (2003) (noting that the standard for granting a
directed verdict equates with the standard for granting summary
14 A-2493-14T2 judgment). If reasonable minds might differ on the strength of
the evidence, the court must "ensure that any legitimate dispute
of material fact be left to the jury." Akhtar v. JDN Props. at
Florham Park, L.L.C., 439 N.J. Super. 391, 403 (App. Div.),
certif. denied, 221 N.J. 566 (2015).
B.
Mode-of-operation liability principles have long been
recognized in our state, in factual contexts where a dangerous
condition of the premises has been shown to arise from a
defendant's decision to provide goods to customers through
"self-service" methods. As Chief Justice Weintraub observed
fifty years ago in Wollerman v. Grand Union Stores, Inc., 47
N.J. 426, 429 (1966), a case in which a supermarket customer
shopping in the vegetable section slipped and fell when she
stepped on a string bean on the floor:
When greens are sold from open bins on a self-service basis, there is a likelihood that some will fall or be dropped to the floor. If the [defendant] operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator's vigilance must be commensurate with that risk.
[(Emphasis added).]
15 A-2493-14T2 As the Chief Justice further noted in Wollerman, if the
dangerous condition on the floor was the result of another
patron's conduct in dropping the string bean, "since [that]
patron's carelessness is to be anticipated in this self-service
operation, [the] defendant [retail store] is liable, even
without notice of the bean's presence on the floor[.]" Ibid.
(emphasis added).
The effect of a mode-of-operation theory of liability — in
self-service situations where there is a reasonable factual
basis in the evidence to support that theory — is to relieve a
plaintiff of having to prove the usual element of actual or
constructive notice of a hazard, which otherwise is necessary
for an ordinary claim of negligence. Such circumstances give
rise to "a rebuttable inference that the defendant is negligent,
and obviates the need for the plaintiff to prove actual or
constructive notice." Prioleau, supra, 223 N.J. at 258.
The applicable Model Civil Jury Charge, 5.20F(11),
implements this concept, by instructing that a defendant
proprietor that has engaged in such a self-service mode of
operation may be liable for an injury proximately caused by such
a dangerous condition, "even if [the] defendant and his/her
employees did not have actual or constructive knowledge of the
particular unsafe condition [that] cause[d] the accident and
16 A-2493-14T2 injury." Ibid. However, the model charge does not make a
proprietor strictly liable for a slip-and-fall accident just
because the hazard on the floor stemmed from a self-service mode
of operation. The model charge also makes clear that the
defendant is not liable in such circumstances unless it "failed
to exercise reasonable care to prevent such [a] hazardous
condition from arising or failed to exercise reasonable care to
discover and correct such [a] hazardous condition." Ibid.
(emphasis added); see also Prioleau, supra, 223 N.J. at 259-60
(noting that the defendant in such cases may rebut the inference
of liability with counterproof that it exercised reasonable
care, in light of its self-service mode of operation under the
circumstances).
Our case law has found mode-of-operation liability concepts
specifically applicable to situations where a proprietor has
operated a cafeteria within a retail establishment in which
patrons are permitted to carry food and drink freely within the
confines of the premises. For example, in Bozza v. Vornado,
Inc., 42 N.J. 355, 358 (1964), the Supreme Court held mode-of-
operation principles applied to a cafeteria-style restaurant
where the plaintiff slipped on a "sticky, slimy" substance.
Patrons of the restaurant would order food at a counter, and
were then permitted to carry that food to other parts of the
17 A-2493-14T2 restaurant without trays or lids for their beverages. Ibid.
The activity was treated as a "self-service" mode of operation
despite the fact that patrons were initially served food at the
counter by the defendant's employees.
Similarly, in Ryder v. Ocean Cty. Mall, 340 N.J. Super.
504, 509-10 (App. Div.), certif. denied, 170 N.J. 88 (2001), we
concluded that the "mode-of-operation" rule applied to a retail
mall where the plaintiff slipped on an "Orange Julius" drink
spilled in a common area where shoppers often stopped to consume
food that had been purchased elsewhere in the building. Citing
Bozza, we ruled that the practice of allowing patrons to carry
food and drink within the confines of the defendant's mall
rendered it "the functional equivalent of a cafeteria." Ibid.
In Nisivoccia v. Glass Gardens, Inc., supra, 175 N.J. at
565-66, the Supreme Court found the mode-of-operation theory
applied where a plaintiff had slipped on loose grapes near the
checkout lanes of a supermarket. Testimony during the trial
showed that grapes most frequently had spilled onto the floor in
the produce aisle and the checkout area of the store, after
being handled by either patrons or employees. Id. at 562. The
Court underscored in Nisivoccia the various "self-service"
aspects of the defendant store's operations, including the
customer's handling of produce in the aisle, and later placing
18 A-2493-14T2 the items on the checkout counter. Id. at 565. The Court held
that the "'[m]ode of operation' . . . includes the customer's
necessary handling of goods when checking out, an employee's
handling of goods during checkout, and the characteristics of
the goods themselves and the way in which they are packaged."
Id. at 566. Hence, the mode-of-operation concept applied,
despite the employees' presence and involvement in the checkout
process.
These cases and their mode-of-operation principles were
recently cited with approval and applied by the Supreme Court in
Prioleau, supra. The factual setting in Prioleau involved a
plaintiff who slipped and fell on a greasy floor while walking
to a restroom in a fast-food restaurant. Prioleau, supra, 223
N.J. at 251. The plaintiff argued that the proprietor was
liable based on a mode-of-operation theory, contending that the
greasy condition of the floor was likely caused by employees who
tracked grease on their shoes while going to the restroom to and
from the kitchen. The Court rejected that theory because the
alleged condition was not the result of a "self-service" aspect
of the restaurant's operations. Id. at 264.
The Supreme Court clarified in Prioleau that the concept of
"self-service" signifies that "customers independently handle
merchandise without the assistance of employees" at some point,
19 A-2493-14T2 increasing "the risk that a dangerous condition will go
undetected[.]" Id. at 262. Moreover, in analyzing the
underlying facts in Prioleau the Court observed that
nothing in the record suggests that when she fell, plaintiff was engaged in, or in contact with, any self-service activity, such as filling a beverage cup at a restaurant soda machine, selecting items from a condiment tray, or that patrons were carrying their drinks or food to the restroom area.
[Id. at 251 (emphasis added).]
In keeping with these mode-of-operation precedents, the
present case qualifies as a "self-service" context with respect
to the free cheesecake samples that were offered to customers
within the Costco store. Although a defense witness described
the samples as "bite sized," that same witness acknowledged that
at times customers, particularly children, would walk away with
the paper cups containing the samples without consuming them on
the spot.
Here, as in Bozza and Ryder, the customers were freely
permitted by defendant to carry food items around the premises,
and to consume and discard them at their own pace. Given that
mode of operation, it was surely foreseeable that some portions
of the cheesecake samples could be dropped on the floor, out of
the sight of the demonstrator who had been distributing them at
the sample table. It was also foreseeable that some patrons
20 A-2493-14T2 might take away an extra sample cup for a companion who was
shopping with them in another location of the store, and that
food fragments from those extra samples could be dropped as
well, away from the vendor stand.
We recognize that the "self-service" fact patterns in Bozza
and Ryder involved food and beverage items that were purchased
by customers on the premises. Cf. Troupe v. Burlington Coat
Factory, 443 N.J. Super. 596, 604 (App. Div. 2016) (finding a
mode-of-operation theory inapplicable where a customer slipped
on what appeared to be a berry that was neither sold nor
provided by the defendant store). However, we discern no legal
significance in whether the edible items are offered within a
defendant's establishment for free or instead for sale. As the
assistant general manager acknowledged, the free samples are
offered to customers for its own business advantage, as a method
of promotion and advertising to encourage customers to purchase
take-home versions of those same products.
To be sure, our case law requires that a plaintiff
demonstrate a reasonable nexus between the store's self-service
activity and the dangerous condition allegedly producing his or
her injury. See, e.g., Troupe, supra, 443 N.J. Super. at 603-04
(reiterating the nexus requirement); Arroyo v. Durling Realty,
LLC, 433 N.J. Super. 238, 245-46 (App. Div. 2013) (rejecting a
21 A-2493-14T2 mode-of-operation claim where no nexus was shown between the
defendant's sale of telephone calling cards displayed on a rack
inside of the defendant store and plaintiff's accident in
slipping on a discarded phone card on the sidewalk outside of
the store).
Viewing the record here, as we must, in a light most
favorable to plaintiff, there is a reasonable factual basis
supporting such a nexus in this case. However, the jury must
first be persuaded that the white substance on the floor that
plaintiff perceived to be "yogurt-based" was, in fact, a portion
of the free cheesecake samples. If the jury is not convinced of
that source, then it must render a verdict for defendant on the
issue.
We recognize that plaintiff was unable to identify with
precision the substance on the floor that allegedly caused him
to slip. There is a plausible basis, however, to believe that
the white substance could have been cheesecake, which may well
have become softer, creamier, and more "yogurt-like" in
appearance after being displayed in sample cups for some
unspecified time at room temperature. Plaintiff's inability to
describe the substance in more exact terms is understandable
given the sudden and traumatic nature of his fall. Of course,
he may well have been mistaken in his description and the
22 A-2493-14T2 substance could have come from another source, but that is a
factual matter for the jury to evaluate.
We are mindful that, apart from the admissible hearsay
statement that plaintiff's companion claimed to have overheard,
none of the store employees who testified admitted that they
observed any foreign substance on the floor in the area where
plaintiff fell, but that does not render incredible plaintiff's
claim that the substance was there. Nor do the hourly
maintenance floor checks conducted by staff logically rule out
an inference that a cheesecake sample had been dropped onto the
floor during the interim after the last inspection took place,
or that it had been overlooked during the inspection.
We likewise are mindful that the vendors were expected to
leave the store, as one witness noted, by 6:00 p.m. and that
plaintiff estimated that the time of his accident was after 6:00
p.m. Even so, we disagree with the trial court's post-trial
observation that the estimated time frame eliminates a
reasonable possibility that the offending morsel was dropped on
the floor at some point before 6:00 p.m. and had not yet been
detected or swept up when plaintiff stepped on it. Furthermore,
the diagram of the premises attested to by plaintiff is
reasonably consistent with his claim that the location of his
23 A-2493-14T2 fall was a relatively short distance from where the cheesecake
samples had been offered.
The trial court failed to give plaintiff the benefit of
these reasonable inferences when it declined to allow the jurors
as fact-finders to consider whether the factual predicates for
mode-of-operation liability were proven here. Although
plaintiff has not provided a particularly compelling factual
basis to support his mode-of-operation argument, he presented
enough evidence to at least justify the model charge being
issued. The jurors should have been allowed to evaluate whether
he met his threshold burden of proving the necessary factual
nexus to a defendant's self-service activity. There also remain
important factual questions about whether the substance was
actually observed on the floor, whether Costco's inspections
were adequate, and whether the locations and hours of the
demonstrators' activities actually coincide with plaintiff's
theory of liability.
C.
We therefore conclude that the trial court's rejection of
the mode-of-operation charge here was prejudicial error, and
that plaintiff is thereby entitled to a new trial at which the
charge will be provided. That said, we provide several caveats
for guidance to the court and the parties. First, as plaintiff
24 A-2493-14T2 conceded at oral argument on appeal, the question of ordinary
negligence is not to be tried a second time. Plaintiff already
has had a fair opportunity to convince a jury at the first trial
of Costco's liability under ordinary negligence principles and
failed. That claim is conclusively decided. See Henebema v. S.
Jersey Transp. Auth., 219 N.J. 481, 491-92 (2014) (holding that
when a new civil trial is ordered because of a defect in the
jury instructions, the original jury's disposition of certain
discrete issues may be preserved if those issues are
sufficiently distinct from the other matters that need to be
litigated in the new trial).
Second, given the pivotal factual dispute here concerning
nexus, the trial court on retrial shall include with the model
charge a specific instruction advising the jurors that they
cannot hold Costco liable under a mode-of-operation theory
unless they find that plaintiff has persuaded them by a
preponderance of the evidence that he slipped on a substance
that came from the stand with free samples. At oral argument on
the appeal, plaintiff conceded that there is no sufficient
factual nexus to the store's food and beverage concession, which
was located a further distance within the store from the spot
where he fell. His claim at the second trial must specifically
25 A-2493-14T2 turn on whether or not he slipped on a fragment of cheesecake
offered at the vendor stand.
Third, we underscore that defendant retains the ability to
rebut any mode-of-operation inference with competing proof that
its maintenance activities to inspect for and clean up debris on
the store's floor were reasonable under the circumstances. See
Prioleau, supra, 223 N.J. at 259-60; Nisivoccia, supra, 175 N.J.
at 564-65.6
The judgment for defendant is vacated and the matter is
remanded for a new trial consistent with this opinion.
6 We need not address Costco's provisional argument raised at oral argument on the appeal that if a mode-of-operation theory is allowed on remand, then Costco should be able to implead the demonstrators as third-party defendants. We refer that procedural question, and the appropriateness of such a late request to amend the pleadings, to the trial court to consider in the first instance.
26 A-2493-14T2