Jeter v. Sam's Club

• Decision Date: 17 March 2022
• Docket Number: A-2 September Term 2021,085880
• Parties: Aleice JETER, Plaintiff-Appellant, v. SAM'S CLUB, Defendant-Respondent, and Linden Route One Associates, Defendant.
• Court: New Jersey Supreme Court

250 N.J. 240

271 A.3d 317

Aleice JETER, Plaintiff-Appellant,

v.SAM'S CLUB, Defendant-Respondent,andLinden Route One Associates, Defendant.

A-2 September Term 2021

085880

Supreme Court of New Jersey.

Argued January 3, 2022

Decided March 17, 2022

John D. Gagnon argued the cause for appellant (Rabb Hamill, attorneys; John D. Gagnon, of counsel and on the brief).

Floyd G. Cottrell, Newark, argued the cause for respondent (Cottrell Solensky, attorneys; Edward Solensky, Jr., Newark, of counsel and on the brief, and George G. Campion, Montvale, on the brief).

Michael J. Epstein, Rochelle Park, argued the cause for amicus curiae New Jersey Association for Justice (The Epstein Law Firm, attorneys; Michael J. Epstein, of counsel and on the brief, and Michael A. Rabasca, Rochelle Park, on the brief).

Betsy G. Ramos, Mt. Laurel, argued the cause for amicus curiae New Jersey Food Council (Capehart & Scatchard, attorneys; Betsy G. Ramos, on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

Under the "mode of operation" rule, plaintiffs who bring premises liability claims against businesses that employ self-service models do not need to show that the business owner had actual or constructive knowledge of a dangerous condition to establish negligence. See Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 248, 122 A.3d 328 (2015). In this appeal, the Court considers whether the rule applies to the sale of grapes in closed clamshell containers.

Plaintiff Aleice Jeter brought suit against Sam's Club after sustaining injuries when she slipped on one or more grapes in the Linden, New Jersey store. At Sam's Club, grapes are sold in closed clamshell containers secured with tape; accordingly, Sam's Club filed a motion in limine on the eve of trial to bar plaintiff from requesting a mode of operation jury instruction.

The trial court conducted an N.J.R.E. 104(a) hearing and determined that the mode of operation rule did not apply. It reasoned that because Sam's Club "elected to sell grapes, not loosely, but in containers, that will certainly be less of a danger."

The court then analyzed the case under traditional negligence principles. After that sua sponte review, the court concluded there was no evidence to support actual or constructive knowledge of the alleged dangerous condition. The court therefore dismissed the case, even though Sam's Club had not filed a motion for summary judgment. The Appellate Division affirmed the trial court's judgment.

We agree with the trial and appellate courts that the mode of operation rule does not apply to the sale of grapes in closed clamshell containers. Selling grapes in this manner does not create a reasonably foreseeable risk that grapes will fall to the ground in the process of ordinary customer handling.

We stress, however, that the procedure followed by the trial court is troubling and should not be repeated. Dispositive motions should not be made or decided on the eve of trial, without providing the parties with a reasonable opportunity to present their cases through testimony and argument. The trial court should not have reached the merits of plaintiff's traditional negligence claim on its own and without giving the parties any further opportunity to present evidence in support of their positions.

Before this Court, plaintiff has abandoned the argument that Sam's Club had actual or constructive notice of the dangerous condition and relies solely on the availability of the mode of operation rule. Thus, in light of our determination that the rule does not apply, no issues remain to be addressed. We therefore affirm the judgment of the Appellate Division.

I.

A.

The trial court record reveals that in the spring of 2017, plaintiff slipped and fell on a grape or grapes in the "main aisle" of a Sam's Club wholesale store in Linden. According to plaintiff, while walking away from the checkout area after realizing she forgot an item, she slipped and fell "halfway past" the fruit and vegetable aisle. After the fall, plaintiff found grapes stuck to her shoe. Brian Crumm, the Assistant Store Manager at the time, approached plaintiff, who explained what happened. An ambulance then took plaintiff to the hospital. The incident was captured on a video surveillance camera in the store, and Crumm documented the details of his interaction with plaintiff in a customer statement report.

In October 2017, plaintiff filed a negligence complaint against Sam's Club. In its answer, Sam's Club asserted several defenses, including lack of actual or constructive notice of the hazardous condition -- loose grapes on the floor. One day before trial was set to begin, Sam's Club filed a motion in limine to bar plaintiff from requesting a mode of operation jury instruction.

In support of its motion to bar the instruction, Sam's Club argued that the mode of operation rule did not apply because the store sold grapes in closed, sealed packages to avoid unsafe conditions caused by loose grapes. It asserted that its liability for any unsafe condition caused by customers negligently opening the packages of grapes required actual or constructive notice of the condition and could not be imputed to the store through the mode of operation rule.

In opposition, plaintiff argued that whether the mode of operation rule applied was a question for the jury because the store knew customers were negligently opening the packages of grapes. She added that the mode of operation rule was created specifically to deal with instances of customer negligence. She also argued that the "packages pop open all the time," are "stacked all over each other," and differ from "toothpaste or something wrapped in cellophane ... where it would be very exceptional that any of it would get [out] of it."

The trial court, after acknowledging that no party had moved for summary judgment, sua sponte conducted a N.J.R.E. 104(a) hearing to determine whether the mode of operation rule applied and, if not, whether plaintiff could provide some evidence of actual or constructive notice. At the hearing, the judge heard telephonic testimony from Crumm, and in-person testimony from plaintiff.

Both Crumm and plaintiff testified that the Linden Sam's Club sold grapes in plastic "clamshell" containers that clipped shut and were secured by tape. Crumm added that this was the only way the store sold grapes.¹ He further explained that the grapes were delivered to the store from a distribution center in Pennsylvania that pre-packaged the grapes in these closed and taped containers. Crumm also said that the containers were transparent so that customers could see the grapes before buying them, and the grapes were "boxed in a way that's meant to be easily opened and closed repeatedly" after purchase by customers.

Plaintiff testified that during her monthly trips to Sam's Club, she had observed loose grapes not in their containers "several times." She also testified that she observed other customers opening the taped clamshell packages in the store to taste grapes "[p]lenty of times," although during an earlier deposition she admitted that she had never observed produce or other items on the floor at the Linden Sam's Club.

During cross-examination by plaintiff's attorney, Crumm revealed that Sam's Club's knew that, on occasion, its customers opened the grape containers:

Q: [Y]ou agree with me it's not uncommon for customers to open the grapes and taste one or two of the grapes to see if they're good before they buy them?

A: I mean, it was always sealed shut with the tape so, I mean, you could tell if a customer had opened up the package in the store. You could definitely tell ... that the package has been tampered with.

Q: Sure. And that ... it wasn't uncommon for customers to do that. Is that fair?

A: I would say yes. Customers did do that. I know we frowned upon it ... at the store.

Q: Okay. But you know the customers were doing it. People are tasting the grapes before they buy them. Is that fair?

A: I would guarantee people who did it. Yeah.

The trial judge examined a clamshell grape container in the courtroom and concluded that "the grapes at this store were not sold in loose form," but rather "were sold in a self-contained ... plastic package ... [that] actually has a locking mechanism in it." The court was thus "persuaded" that the mode of operation rule did not apply because the store "elected to sell grapes, not loosely, but in containers, that will certainly be less of a danger." The court therefore agreed with Sam's Club and concluded that the mode of operation rule did not apply to the sale of grapes in closed, taped, clamshell containers despite the store's knowledge that customers opened them from time to time.

The court then proceeded to analyze the case under traditional negligence principles that require actual or constructive notice of the dangerous condition -- grapes on the floor. Plaintiff admitted she had no evidence of actual notice but argued there was constructive notice because there was "no evidence to establish when the floors were inspected [and] how long that grape had been there." Sam's Club argued that plaintiff failed to meet her burden to show constructive notice by relying only on a lack of evidence presented by the store. The court agreed, finding that there was no evidence as to "how long this particular grape [was] on the floor." The court therefore held that plaintiff failed to meet her burden of proving actual or constructive notice. The judge concluded the N.J.R.E. 104(a) hearing by stating, "I find there's no legitimate facts in dispute with respect to the actual or constructive notice, and I've already ruled that I cannot give the benefit of the mode of operation charge. So, for those reasons, unfortunately this case is dismissed."

The court then entered an order dismissing the case with prejudice, noting that there was "no basis to proceed." Plaintiff later filed a motion for reconsideration, which the trial court denied.

B.

Plaintiff appealed, and the ...