Special Announcement:

 

HAROLD S. JACOBOWITZ, ESQ.

 

FORMER AIG VICE PRESIDENT, CHIEF TECHNICAL OFFICER FOR PROPERTY/CASUALTY CLAIMS AND SENIOR VICE PRESIDENT FOR CLAIMS & LITIGATION OF FOJP SERVICE CORP.
HAS JOINED OUR FIRM.
MR. JACOBOWITZ WILL SPECIALIZE IN MANAGEMENT OF EXCESS, COMPLEX AND BAD FAITH LITIGATION
 

 

 



 

 

NJ Law Review Update

Dear Colleagues:

HOLDING: Defendant found not liable under the “mode of operation” theory when a patron slips on a phone calling card that was discarded outside of the defendant’s store on the sidewalk. Arroyo v. Durling Realty, LLC, Appellate Division, decided October 23, 2013.

The Appellate Division in the matter of Arroyo v. Durling Realty LLC, found that the mode of operation theory was not applicable in the instance of a plaintiff slipping on a phone calling card that was discarded outside of the defendant’s store on the sidewalk. Rather, the Appellate Division opined that the ordinary principles of premises liability would be applied to the matter.

The plaintiff alleges that she slipped on a discarded calling card after she exited the defendant Durling Reality LLC’s Quick Check convenience store. The plaintiff held the position that the presence of the card on the sidewalk created an unreasonably dangerous condition. The plaintiff argued that the mode of operation theory should be applied because the phone cards were displayed on racks near the store’s cash register and exit doors. The plaintiff retained a liability expert who opined that the store should have had trash cans at the exit and a regular sweeping schedule.

The defendants produced evidence that demonstrated that the front of the store was swept of cigarette butts and other debris approximately 10 or 15 times a day and that the entire front sidewalk and parking lot were swept twice a day. In addition, at the end of each shift employees were required to sweep the area outside to make sure it was clean and the outside was vacuumed every two or three days. No proof was offered that any store employee was aware that the calling card was on the sidewalk in advance of the plaintiff’s accident. The defendant moved for Summary Judgment when granted by the Court. Thereafter plaintiff appealed.

The Appellate Division noted that the record lacked competent proof that the defendant failed to exercise due care in the manner in which it maintained the sidewalk outside the store. Moreover, the Appellate Division disregarded conclusiory statements of the plaintiff’s experts criticizing the procedures because they were not grounded in and identified by objective standards.

The Appellate Division opined that this was not a mode of operation liability case because it did not occur inside the store. Rather, it occurred outside on the sidewalk. It is not a self service case like a cafeteria because the person who originally purchased the phone card would have had to take it off the display rack, present it to the cashier at checkout and have the card activated by the cashier before taking it out of the store. Moreover, it is not reasonable for the plaintiff to have asserted that the convenience store’s method of doing business created the alleged hazardous condition on the sidewalk. What a purchaser of a phone card chose to do after leaving the store is not an integral feature of the stores retail operation. Therefore the Appellate Division affirmed the trial court’s granting of Summary Judgment.

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