If you fall in a grocery store and injure yourself, you are not necessarily entitled to compensation. The mere happening of an accident is not proof of negligence. McCombe v. Public Service Railway Co. 95 N.J.L. 187; Donus v. Public Service Railway Co., 102 N.J.L. 644. “Negligence is a fact which must be proved; it will not be presumed.” Id.
In fact, the mere existence of a dangerous condition does not, in and of itself, establish constructive notice of it. Sims v. City of Newark, 244 N.J. Super. 32, 42, 581 A.2d 524 (App. Div. 1990). “A proprietor generally is not liable for injuries caused by defects of which he had no actual or implied knowledge or notice, and no reasonable opportunity to discover.” Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291, 471 A.2d 25 (1984).
However, “once a prima facie case of negligence can be inferred from the facts, the burden of proof shifts to the defendant to produce evidence of its due care.” This is known as the “Mode of Operation” rule. This rule states that notice is not required when defendant’s Mode of Operation creates the danger that allegedly caused plaintiff’s injury. New Jersey case law has restricted this burden shift to limited and specific situations.
In the New Jersey Supreme Court case of Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-430 (1966), the Court held that where string beans are sold from bins on a self-service basis there is a probability that some will fall or be dropped on the floor either by defendant’s employees or by customers. Since plaintiff would not be in a position to prove whether a particular string bean was dropped by an employee or another customer (or how long it was on the floor) a showing of this type of operation is sufficient to put the burden on the defendant to come forward with proof that defendant did what was reasonably necessary in order to protect a customer against the risk of injury likely to be generated by defendant’s mode of operation. Id.
Similarly, in Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003), the plaintiff slipped and fell on loose grapes lying on the floor. The proofs did not show how the grapes came to be on the floor or how long they had been there. However, the court found that in the produce area, grapes were displayed in plastic bags that permitted spillage. The Court went on to state “a mode-of-operation charge is appropriate when loose items that are reasonably likely to fall to the ground during customer or employee handling would create a dangerous condition.” Id. at 565.
Here at Ginarte, Gonzalez & Winograd, LLP, we provide high-caliber representation to New York / New Jersey personal injury victims and their families. Contact our office at 1 (888) GINARTE for free consultation and we will make sure your rights are not lost. You can also use our online contact form.