*When will New York adopt the Mode of Operation Rule?

You may not have heard of the Mode of Operation Rule, but this rule, applied in slip or trip and falls cases in self-service retail establishment, such as Wal-Mart, has been adopted by over 20 states including Connecticut, Massachusetts, Vermont and New Jersey.

My research fails to reveal one State Court case in New York*, adopting the rule let alone even mentioning it. Why this is, I don’t know for upon its application a defendant is put in the position of disproving that which the plaintiff was normally required to prove.

The rule provides that If a proprietor could reasonably anticipate a hazard could arise based on the manner in which his business regularly operates, a plaintiff does not have to prove actual or constructive notice of the hazard.

Or said another way in a case where the plaintiff slipped on beans:

“That someone was negligent seems clear enough. Vegetable debris carries an obvious risk of injury to a pedestrian. A prudent man would not place it in an aisle or permit it to remain there.

When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the 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. …

Here the hazard could have been caused by (1) carelessness in the manner in which the beans were piled and displayed; or (2) carelessness of an employee in handling the beans thereafter; or (3) carelessness of a patron. As to (1) and (2), defendant is chargeable whether or not it was aware of its employee’s neglect. Defendant’s knowledge is relevant only as to (3), but even there, since the patron’s carelessness is to be anticipated in this self-service operation, defendant is liable, even without notice of the bean’s presence on the floor, if (4) defendant failed to use reasonable measures commensurate with the risk involved to discover the debris a customer might leave and to remove it before it injures another patron.

The customer is hardly in a position to know precisely which was the neglect. Overall the fair probability is that defendant did less than its duty demanded, in one respect or another. At least the probability is sufficient to permit such an inference in the absence of evidence that defendant did all that a reasonably prudent man would do in the light of the risk of injury his operation entailed. It is just, therefore, to place “the onus of producing evidence upon the party who is possessed of superior knowledge or opportunity for explanation of the causative circumstances.” Wollerman v. Grand Union Stores, Inc. 47 N.J. 426 (1966)

This theory of liability is not like the recurring dangerous condition cases, “where even absent proof that a defendant has actual knowledge of the condition on the date of the accident, a defendant’s actual knowledge of the recurrent condition constitutes constructive notice of each specific recurrence of it,” Erikson v. J.I.B. Realty Corp., 12 A.D.3d 344 (2nd Dept. 2004) as there is no need to show that the condition was recurring in a Mode of Operation Rule case.

* A New York District Court Case, DeLotch v. Wal-Mart Stores, Inc., 2008 U.S. Dist. LEXIS 47134, discusses it but rejects it on the authority of Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837, 492 N.E.2d 774, 501 N.Y.S.2d 646 (1986); and Faricelli v. TSS Seedman’s Inc., 94 N.Y.2d 772, 720 N.E.2d 864, 698 N.Y.S.2d 588 (1999) However, Gordon did not involve a large self service store and it appears that the Mode of Operation Rule was not put forth in Faricelli

3 responses to “*When will New York adopt the Mode of Operation Rule?

  1. Lou:

    Great piece. A real, live un-explored theory of liability in NY?

    Good stuff.

    • Thanks. The funny thing about this is that I came across the Mode of Operation Rule, while reading a “blog” by one of the characters from the show The Good Wife, which is often filmed in out of Manhattan, New York City Courthouses, although it is supposed to be taking place in Chicago. On one occasion they showed the beautiful Long Island City Courtroom, famous for the the 1927 murder trial of Ruth Snyder and her lover Henry Judd Gray. (The case upon which Double Indemnity was based.) Ruth Snyder’s execution made newspaper history, when a picture of the execution made it onto the front page of the New York Daily News as a result of a camera being snuck into the execution room on the lower leg of a photojournalist. It was also here that the bank robber Willie Sutton is said to have answered the question, “Why do you rob banks?” with his famous answer “because that’s where the money is.” The building was also the setting for the movies, “Manslaughter” (Cecil B. DeMille) and “The Wrong Man” (Alfred Hitchcock).

  2. Lou, I see your still practicing and that’t great. I came across your site on a pltf’s list. It’s a fascinating and logical theory and would enhance pltf’s PI practice in NY. I couldn’t take advantage of it since I’m retired and live(mostly ) in fl. Good luck.

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