Slip and Falls: Clumsy Patron or Negligent Shopkeeper?

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

A slip-and-fall is the classic personal injury scenario. A customer walks into a restaurant, doesn’t see a wet spot on the floor and hurts themselves. That is exactly what happened in Prioleau v. Kentucky Fried Chicken, Inc., et al. which was decided by the Superior Court of New Jersey, Appellate Division on March 3rd.

A patron who enters a business is known as an invitee and generally that business owes a reasonable duty of care to that patron. This means that the owner of the business is responsible for eliminating all dangers that they know or should have known about. The ‘should have known’ part is known in legalese as constructive notice. But just because someone falls doesn’t in itself mean that constructive notice existed. But what if the nature of a business itself creates inherent dangers? This is known as the “mode-of-operation doctrine.”

So if there is a substantial risk of injury that is inherent in a business then the plaintiff bringing the tort claim does not have to prove that there was actual or constructive notice. In this case a water or cooking oil spill was not considered inherent in patron conduct. What this really means is that this doctrine was designed for business models that encourage self-service.  For example, there is a classic Seinfeld episode in which the character Kramer has the idea of a make-your-own pizza parlor and Seinfeld warns him that you can’t just have people shoving their arms into hot ovens. If the show was real and that business was opened, severe burns would fall under the “mode-of-operation doctrine.”

In addition to this doctrine there is also a “premises liability rule” in which a patron of a self-service business is also relieved of proving actual or constructive notice. This particular case was reversed in part and remanded for a new trial.  “Mode-of-operation doctrine” didn’t apply here but rather the question should have been classic breach of duty.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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