New Jersey Supreme Court Reaffirms Limitations of “Mode of Operation” Doctrine

By Gregory D. Speier, Esq.*


Key Points:

  • “Mode of Operation” doctrine may apply to accidents occurring beyond the area where the self-service activity takes place and may apply even without evidence of customer carelessness.
  • Key to the doctrine’s applicability is the nexus between self-service components of the defendant’s business and the risk of injury where the accident occurred.
  • For businesses employing a self-service business model, the entire business premises may be subject to “Mode of Operation” applicability.


In a significant ruling that will impact how premises liability cases are litigated throughout the state, the New Jersey Supreme Court, on September 28, 2015, unanimously reaffirmed the limitations of “Mode of Operation” applicability. In Prioleau v. Kentucky Fried Chicken, 2015 N.J. LEXIS 957 (N.J. Sept. 28, 2015), the plaintiff slipped and fall near a bathroom within KFC. The area where the accident occurred had no relationship to any self-service component of KFC’s business, and the doctrine did not apply.

In the typical slip-and-fall case, the plaintiff is required to prove that the defendant had actual or constructive notice of the condition which allegedly caused the accident. In other words, a plaintiff must prove that the business knew, or should have known, of the condition(s) which caused the plaintiff’s fall.

However, in Mode of Operation cases, the plaintiff is relieved of the burden of proving notice and is entitled to an inference of negligence against the business in situations where it is established that the manner in which a business operates creates the hazard. The burden then shifts to the defendant, who may avoid liability only by showing that it acted reasonably and prudently in light of the risk of injury the operation entailed. Clearly, in Mode of Operation cases, the plaintiff has the upper hand.

In Prioleau v. Kentucky Fried Chicken, the New Jersey Supreme Court answered the question of when Mode of Operation should, or should not, apply to a particular case. In Prioleau, the plaintiff slipped and fell on a wet floor on her way to the bathroom within KFC. The plaintiff alleged that the dangerous condition was caused by employees tracking grease onto the floor from the kitchen, which mixed with rain water that was brought into the restaurant from outside. The plaintiff argued that the jury should be instructed on Mode of Operation due to the fact that the “operation” of KFC permitted employees to track grease onto the floor. The trial judge agreed and instructed the jury on Mode of Operation. The jury came back with a verdict in favor of the plaintiff. On appeal, KFC argued that Mode of Operation did not apply and that giving the charge to the jury constituted reversible error. The Appellate Division agreed with KFC, but due to a dissenting opinion, the matter was appealed to the New Jersey Supreme Court. 

In its decision, the New Jersey Supreme Court ordered a new trial on the issue of liability. It ruled that Mode of Operation application: (1) is limited to businesses engaged in a “customer self-service” business model; (2) only applies to areas affected by a business’s self-service operations, which may extend beyond the areas traditionally associated with self-service activities (the court gave the examples of applying Mode of Operation beyond the produce aisle of supermarkets and beyond the area of a mall’s food court); and (3) does not require only customer mishandling, as the condition may be created by employee mishandling or the inherent qualities of the merchandise itself (think loose grapes in a vented bag). 

Applying these principles to the Prioleau case, the court held that the location where the plaintiff’s slip and fall occurred, near the bathroom within KFC, had no relationship to any self-service component of KFC’s business. In that regard, the court held that the jury instruction on Mode of Operation was given in error, thus, requiring a new trial on the issue of liability.

*Greg is an associate in our Roseland, New Jersey office who can be reached at 973.618.4179 or

Defense Digest, Vol 21, No. 4, December 2015

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