Don?t misread the headline.? If you?re a retail business owner, you should clean your store and you need to pick up trash when you see it. Fellow business attorneys, don?t run and tell your clients that it?s better to go without an inspection/cleaning schedule. The issue here is an injured patron seeking to hold a retail business liable for something that was likely spilled or dropped on the floor by another customer before the mess is discovered by an employee.

In a recent post, we highlighted the ?Mode-of-Operation Rule??in the context of a slip and fall on grease near the bathroom of a fast-food chain. The issue arose again in Troupe v. Burlington Coat Factory, which involved a woman who slipped and fell on a berry inside the Baby Depot section of a Burlington Coat Factory.

To review, in New Jersey a business can only be held liable for injuries caused by a dangerous condition that it has notice of or creates. In cases involving self-service counters, the Mode-of-Operation Rule may be applied to allow the jury to infer negligence.

In the prior case we reviewed, Prioleau v. Kentucky Fried Chicken, the court found that a slip and fall on grease near a bathroom at a KFC did not trigger the Mode-of-Operation Rule because there was no evidence indicating that the location of the accident had even the slightest relationship to any self-service component of KFC?s business.

In Troupe, the evidence showed that Burlington Coat Factory had the store cleaned nightly but did not have its employees periodically sweep the floors. Instead, its employees were instructed to pick up anything they saw dropped on the floor.? The attorney for the injured woman hired an expert who claimed that Burlington created a substantial risk of injury by not having a periodic inspection/cleaning program while the store was open. The expert claimed that such a program was necessary because Burlington should have foreseen that babies and children would be eating and drinking, resulting in food and liquids dropped on the floor.

The court dismissed Ms. Troupe?s case finding that she failed to prove that Burlington had notice of the berry on the floor prior to the accident. The court also rejected her attempt to apply the Mode-of-Operation Rule. She argued that ?the mode-of-operation that created the hazard was the lack of any periodic inspection of the floors during the business shopping day.? Relying on Prioleau, the appeals court upheld the dismissal explaining that the Mode-of-Operation Rule does not apply to a store?s cleaning schedule.

Similar to Prioleau, the court in Troupe found that the accident did not involve any self-service component of Burlington’s business. The accident occurred in an aisle, not in an area of clothing racks or any aspect of Burlington’s self-service business.? She simply failed to prove that her accident had anything to do with Burlington’s business and, ironically, a berry rotten case was thrown out instead of a piece of fruit.

Contact Powell & Roman if you need an attorney.