Proof of performance required: mode of operation applied to restrooms near pools.

Summary judgment was denied without prejudice for a claim of slip and fall in a men’s room located outside a pool. The court found that both the defendant’s argument that the plaintiff must prove notice, and the plaintiff’s argument as to spoliation, were unpersuasive in light of the mode of operation doctrine. The court opined that the plaintiff was relieved of the obligation to prove actual or constructive notice of a dangerous condition when, as a matter of probability, a dangerous condition was likely to occur as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct. The independent use of a pool was found to be inherently self-service. Although the plaintiff was relieved of the burden of actual or constructive notice, the defendant was not prohibited from re-filing to address if any question of fact existed under the mode of operation doctrine with regard to having met its burden of proof of performance of a duty of care for that type of business. 

_{Case Law Alerts, 4th Quarter, October 2019}

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