Prioleau v. Ky. Fried Chicken, Inc.

• Decision Date: 28 September 2015
• Docket Number: A-99 September Term 2013, 074040
• Citation: 122 A.3d 328,223 N.J. 245
• Parties: Janice J. PRIOLEAU, Plaintiff–Appellant, v. KENTUCKY FRIED CHICKEN, INC., and KFC Corporation, Defendants, and Yum Brands, Inc. and KFC U.S. Properties, Inc., Defendants–Respondents.
• Court: New Jersey Supreme Court

223 N.J. 245

122 A.3d 328

Janice J. PRIOLEAU, Plaintiff–Appellant

v. KENTUCKY FRIED CHICKEN, INC., and KFC Corporation, DefendantsandYum Brands, Inc. and KFC U.S. Properties, Inc., Defendants–Respondents.

A-99 September Term 2013, 074040

Supreme Court of New Jersey.

Argued March 17, 2015.

Decided Sept. 28, 2015.

Glenn A. Montgomery argued the cause for appellant (Montgomery, Chapin & Fetten, attorneys; Gary Ahladianakis, Bridgewater, on the briefs).

Beth A. Carter argued the cause for respondents (Bennett, Bricklin & Saltzburg, attorneys).

Lewis Stein argued the cause for amicus curiae The New Jersey Association for Justice (Nusbaum, Stein, Goldstein, Bronstein & Kron, Succasunna, attorneys).

Opinion

JUSTICE PATTERSON delivered the opinion of the Court.

In a series of decisions arising from personal injuries sustained by business invitees on the premises of businesses whose operations involve customer self-service, this Court has recognized a principle known as “mode of operation.” See Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563–65, 818 A. 2d 314 (2003) ; Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429–30, 221 A. 2d 513 (1966) ; Bozza v. Vornado, Inc., 42 N.J. 355, 359–60, 200 A. 2d 777 (1964). Under the mode-of-operation rule, a business invitee who is injured is entitled to an inference of negligence and is relieved of the obligation to prove that the business owner had actual or constructive notice of the dangerous condition that caused the accident.See Nisivoccia, supra, 175 N.J. at 563–65, 818 A. 2d 314 ; Wollerman, supra, 47 N.J. at 429–30, 221 A. 2d 513 ; Bozza, supra, 42 N.J. at 359–60, 200 A. 2d 777.

The rule has only been applied to settings such as self-service or a similar component of the defendant's business, in which it is reasonably foreseeable that customers will interact directly with products or services, unassisted by the defendant or its employees.

In this appeal as of right from a judgment in favor of plaintiff Janice J. Prioleau, pursuant to Rule 2:2–1(a)(2), we review the trial court's application of the mode-of-operation rule to plaintiff's personal injury claim. Plaintiff sustained injuries in a fall as she walked to the restroom in a Kentucky Fried Chicken restaurant. She alleged that she fell either because defendants failed to exercise reasonable care to keep the restaurant floor dry on a rainy evening or because defendants' employees tracked oil and grease from the restaurant's kitchen to the area near the restroom.

At trial, although the evidence suggested no nexus between any self-service aspect of the restaurant's operations and plaintiff's accident, the trial court instructed the jury to consider the mode-of-operation rule. The jury returned a verdict in plaintiff's favor, and defendants appealed. A majority of the Appellate Division reversed, holding that the trial court's mode-of-operation charge was improper in the circumstances of this case, and remanded for a new trial. A member of the panel concurred in part and dissented in part, finding ample support for the mode-of-operation charge in the testimony presented at trial.

We affirm as modified the judgment of the Appellate Division. The trial record establishes that plaintiff's injuries were unrelated to any aspect of defendants' business in which the customer foreseeably serves himself or herself, or otherwise directly engages with products or services, unsupervised by an employee. Neither theory of liability advanced by plaintiff involved the limited circumstances in which the mode-of-operation rule has been held to apply. Because the mode-of-operation rule significantly reduced plaintiff's burden of proof, and may have determined the outcome, the trial court's charge on the rule constituted reversible error. Accordingly, we remand this matter to the trial court for a new trial on the issue of liability.

I.

This appeal arose from a slip-and-fall accident that occurred on December 26, 2009, at a Kentucky Fried Chicken restaurant in Cherry Hill.¹ The restaurant was owned by KFC U.S. Properties Inc., whose parent corporation is Yum! Brands Inc.²

According to the deposition testimony of Yum! Brands' Loss Prevention Manager, which was read into the record at trial, the corporation's policy is that employees are expected to regularly monitor customer areas and to set up safety signs to alert customers in areas where the floors are wet. The Cherry Hill Kentucky Fried Chicken store manager testified that the restaurant did not have a policy to clean the floors “throughout the course of the day,” but that the floors would be cleaned “if there was a spill.” She testified that on rainy days, when customers tracked water into the restaurant, employees would post “wet floor” signs and would use a mop to remove water “if it's too wet[.]”

The corporate area manager testified that oil was used to cook the food served and that oil sometimes spilled on the kitchen floor. She acknowledged that kitchen employees could “possibly” track cooking oil to customer areas when they used the restrooms. The restaurant's manager on duty stated that the facility cleaned the floors with color-coded mops, which are used to clean either the kitchen or the customer areas, to prevent the spread of oil from the kitchen to floors used by customers. According to the assistant manager on duty, when she arrived for her shift about four hours prior to plaintiff's accident, she did not conduct a detailed inspection of the floor.

On the evening of her accident, plaintiff and her adult son and daughter, Richard Prioleau and Adriana Prioleau, were on a trip from their home in Delaware to New Jersey. The family planned to meet a friend who would then drive plaintiff's son to his destination, New York City. Plaintiff and her children recalled that the weather that evening was rainy; plaintiff stated that there was a “torrential storm.”

At approximately 6:00 p.m., plaintiff and her children decided to stop at the Kentucky Fried Chicken restaurant to have dinner. When plaintiff entered the restaurant, she immediately went to the counter to tell her son what she wanted to eat, and then headed to the restroom. Plaintiff testified that, because of the heavy rain outside, she and her children “tracked water” into the restaurant.

As she approached the restroom, plaintiff slipped and fell, landing on her buttocks and hands. According to plaintiff, the floor near the restroom felt greasy and wet, and she testified that it was slippery “like I was on ice ... like Ice Capades.” She stated that there were no mats or warning signs in the area where she fell. Plaintiff's son, daughter, and another patron came to plaintiff's aid; plaintiff stated that “they were sliding around, too,” as they tried to lift her to her feet. Plaintiff's children agreed with her that the floor near the restroom at the restaurant was “slippery” and “greasy.”

Significantly, for purposes of this appeal, nothing in the record suggests that when she fell, plaintiff was engaged in, or in contact with, any self-service activity, such as filling a beverage cup at a restaurant soda machine, selecting items from a condiment tray, or that patrons were carrying their drinks or food to the restroom area. Indeed, plaintiff's testimony established that she had not yet ordered or purchased her dinner when her accident occurred.

Instead, by her own account, plaintiff fell immediately after entering the restaurant.

According to plaintiff, she was in pain after her fall but did not immediately seek medical attention. Pursuant to corporate policy, the assistant manager on duty apologized to plaintiff and provided free meals to her and her children. The assistant manager testified that, although she observed no liquid on the floor where plaintiff had fallen, she posted a cone by the restroom. Plaintiff and her children left the restaurant and continued their trip to meet their friend.

After returning to Delaware, plaintiff went to the emergency room, and was subsequently examined by her family physician, who referred her to a neurosurgeon. The neurosurgeon prescribed physical therapy. Plaintiff alleged that she experiences constant pain in her lower back and takes pain medication, that she refused treatment involving needles or surgery because she considers it invasive, and that her pain has affected her ability to perform some of the tasks assigned to her at work.³

Plaintiff filed this action in the Law Division. She asserted a negligence claim and specifically alleged that defendants failed to exercise reasonable care by failing to provide plaintiff, an invitee, with “a safe place to traverse the premises[.]”

The case was tried before a jury over three trial days. At the close of the proofs, defendants moved for a directed verdict, and the trial court denied defendants' motion.

At the jury charge conference, plaintiff's counsel asserted that, because oil may have been tracked from the restaurant kitchen to the floor near the restroom, plaintiff was entitled to a mode-of-operation jury charge. Plaintiff's counsel defined the mode of operation in this case as “[t]he fact that there's grease being used in the operation,” and “[t]he fact that [defendants' managers] have testified that they should go out and look at and examine the floor all the time or everyday[.]” Over defense counsel's objection, the trial court agreed to give the mode-of-operation jury charge, stating that “this was a fast food restaurant [with] only six tables, [and] a lot of people in and out on a rainy day.” The court also cited testimony that “they should have a cone out on any rainy day” because the floor would become wet and slippery.

The trial court did not choose one of the alternative model charges on the mode-of-operation rule set forth in Model Jury Charge (Civil) 5.20F(11), “Notice Not Required When Mode of Operation Creates Danger” (May 1970),⁴ but gave both alternatives in sequence. In addition, the trial court separately instructed the jury...