NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2884-12T4

JANICE J. PRIOLEAU, APPROVED FOR PUBLICATION

Plaintiff-Respondent, March 3, 2014

v. APPELLATE DIVISION

KENTUCKY FRIED CHICKEN, INC. and KFC CORPORATION,

Defendants,

and

YUM BRANDS, INC. and KFC U.S. PROPERTIES, INC.,

Defendants-Appellants. _______________________________

Argued October 30, 2013 - Decided March 3, 2014

Before Judges Sapp-Peterson, Lihotz and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5817-10.

Beth A. Carter argued the cause for appellants (Bennett, Bricklin & Saltzburg, L.L.C., attorneys; Ms. Carter, of counsel and on the briefs).

Glenn A. Montgomery argued the cause for respondent (Montgomery, Chapin & Fetten, P.C., attorneys; Mr. Montgomery, of counsel; Gary Ahladianakis, on the brief). The opinion of the court was delivered by

LIHOTZ, J.A.D.

Defendants Yum Brands, Inc. and KFC U.S. Properties, Inc.

appeal from a jury verdict awarding plaintiff Janice J. Prioleau

damages for injuries suffered from a fall on defendants'

restaurant premises. Defendants maintain the trial judge erred

in denying their motion for a directed verdict. Alternatively,

defendants argue erroneous jury instructions and incorrect

evidential determinations require the verdict be set aside and a

new trial granted.

Following our review, we affirm the denial of defendants'

motion for a directed verdict. However, we agree that use of

the mode-of-operation liability jury charge was erroneous,

warranting reversal. Accordingly, we vacate the verdict and

remand for a new trial.

I.

The facts are taken from the record of the three-day jury

trial. Early in the evening of December 26, 2009, between 5 and

6 p.m., plaintiff, who was traveling with her adult children

Richard and Adriana, stopped in the Cherry Hill KFC restaurant

owned and operated by defendants.

Plaintiff and her children confirmed the weather was "very

bad," it was "pouring" rain, and there was "a torrential storm."

2 A-2884-12T4 Plaintiff entered the restaurant without aid of an umbrella.

Further, plaintiff recalled she and her children "were wet[,]"

her jacket, clothing and sneakers were soaked, and the family

"tracked water in[to]" the restaurant.

When the family entered the premises, only one other

customer was in the dining area. Initially, plaintiff did not

notice water or "wetness" on the restaurant's floor. Her son

and daughter strode to the counter to place their order and

plaintiff headed toward the restroom. Approximately five feet

from the restroom, plaintiff started "to slip and slide like

[she] was on ice." She fell, extending her arms and hands to

brace her fall and avoid banging her knees, and landed on her

buttocks. Richard attempted to assist plaintiff, but he

"started to slip[,] also." Adriana "ran over also and tried to

guide [plaintiff] up[, but] she started to slip." Then, the

male patron seated nearby helped plaintiff rise from the floor.

During trial, plaintiff described the floor's surface,

stating: "It was just like a sheet of ice. It was slippery. It

was wet. And when I fell, that's what I came up was on my

clothes [sic]." Plaintiff said the floor felt like

"grease . . . and water." On cross-examination, plaintiff

expounded, exclaiming: "I felt it was wet first. It was

3 A-2884-12T4 slippery. And . . . when we first started sliding is when

[sic] I realized that it was grease mixed with water."

She and her children were approached by Debbie Lovato, the

restaurant's assistant manager. Richard informed Lovato

plaintiff had slipped. She declined medical attention stating

"[i]t wasn't that serious." Plaintiff and her family ate their

food and left.

Plaintiff did not feel any immediate pain resulting from

her fall; she "figured [she] would be okay." However, Adriana

drove home to Newark, Delaware because plaintiff "was in too

much pain." Upon arriving in Newark, plaintiff sought treatment

at Christiana Hospital's emergency room and was discharged the

same day. Two weeks later, on January 11, 2010, she consulted

her family doctor. As a result of the accident, plaintiff

injured her neck, back, and hands; experienced numbness in her

left leg; and tingling in both arms and her left foot. She

underwent a CT scan of her lumbar spine, which revealed disc

bulges and arthritis at L1-2, L2-3, L3-4, and L4-5, as well as a

herniation in L5-S1. She declined spinal injections and

surgical intervention, and attended physical therapy a few days

a week for approximately two months.

Plaintiff suffered no lost wages, acknowledging she

returned to work without missing any time, despite the physical

4 A-2884-12T4 demands of her occupation. Plaintiff last received medical

treatment in August 2010.

On cross-examination, defendants attempted to inquire into

plaintiff's prior medical treatments for her back and neck.

Plaintiff had testified she only had prior difficulties with her

knee. Defendants, intending to impeach plaintiff's testimony,

questioned her regarding medical care undertaken to treat her

lumbar spine in 2002. The judge sustained plaintiff's objection,

precluding the use of plaintiff's prior medical records during

cross-examination.

Additional evidence introduced by plaintiff included

excerpts from deposition testimony of defendants' employees.

Mark Loveless, the loss prevention manager, described various

company policies. He stated a warning sign is used if floors

are wet and there is a general requirement to monitor the

customer floor area for water or spills. Michelle Abdou, the

restaurant's general manager, admitted no policy required the

floor to be mopped periodically throughout the day, rather it

was mopped in the evening and in the event of a spill, or if

water was tracked in by customers. Further, when a floor is wet,

warning signs are placed at the affected site. Cheryl Lynn

Gross, an area coach and Abdou's supervisor, described how the

restaurant cooks chicken in open split vat fryers and pressure

5 A-2884-12T4 cookers. She noted oil is used in the cooking process. During

kitchen operations in the Cherry Hill restaurant, the kitchen

floor is mopped two to three times per day and also if there is

a spill. When asked whether someone on the cook line could get

oil on their footwear, Gross responded "possibly."

Acknowledging employees access the same restrooms as customers,

Gross was asked whether kitchen workers with soiled footwear

could track oil to the restroom. Again she responded,

"possibly." At her deposition, Lovato testified that dining

area tables were wiped every half-hour and the restrooms were

checked when the tables were wiped. Lovato admitted she was

unaware of any entries recording an inspection of the restaurant

floor in the four hours preceding plaintiff's fall. She had not

personally performed inspections, nor could she remember who was

working that day that may have done so.

Plaintiff presented expert testimony from Allan D. Tiedrich,

MD, an expert in physical medicine and rehabilitation and

orthopedics. He discussed his review of plaintiff's medical

records and the examination he performed on September 13, 2010.

During cross-examination, defendants established Dr. Tiedrich

had not been provided with plaintiff's pre-accident treatment

records and attempted to use the records to question him,

including a 2007 lumbar x-ray. The trial judge allowed limited

6 A-2884-12T4 questions regarding Dr. Tiedrich's knowledge of the prior

treatment, but precluded the use of the documents or his

examination of the earlier x-ray.

Abdou and Lovato testified for defendants. Abdou was not

working the day of plaintiff's fall. She described the

restaurant's layout, including the six-table dining area, the

order counter, restrooms and the location of the two entrances.

Abdou testified both customer entrances have "big[,] heavy"

floor mats "built into the tile of the floor" and a rubber floor

mat over those mats. Another large rubber mat was located in

front of the soda machine.

Lovato explained she arrived at the restaurant at 2 p.m.

and did not notice anything on the dining area floor. During

her shift, she did not see any substances on the floor and no

one complained the floor was wet or greasy. The restaurant does

not have a specific policy requiring periodic inspection or

mopping of the dining area floor during the day. However, when

the floors are mopped, the mops are "color coded" and specific

to the kitchen and the dining area. On the day of the incident,

defendants' records contained no entry recording a floor

inspection prior to plaintiff's accident.

After learning of plaintiff's accident, Lovato attempted to

speak to plaintiff, and learned she was in the restroom. In

7 A-2884-12T4 accordance with company policy, Lovato apologized to plaintiff

and offered to compensate the family for their meal.

Lovato visually examined the location where plaintiff fell

and saw no water, grease or other substance on the floor.

However, she acknowledged she did not physically touch the floor.

She maintained the floor in front of the ladies room was not

greasy or it would have been cleaned. She further stated she

could survey the dining area floor from the order counter.

Lovato insisted there were no spills on the floor, stating if

water or grease was on the tile floor it is visible because "it

shines." She also explained team members wipe the dining area

tables every half-hour and check the dining room and no problems

were reported.

After the incident, "as a precautionary measure," Lovato

erected a caution cone outside the restroom, which remained

there until the restaurant closed. Immediately after speaking

with plaintiff, Lovato called the company hotline to report the

incident.1

At the close of evidence, defendants moved for a directed

verdict, arguing plaintiff failed to identify the substance on

which she slipped and had not established "any notice to the

defendant[s]." The trial judge denied the motion.

1 The report was introduced into evidence, but is not included in the record.

8 A-2884-12T4 During the charge conference, defendants objected to the

inclusion of a mode-of-operation liability charge. The judge

overruled the objection and included the doctrine in the jury's

instructions.

The jury returned a verdict in favor of plaintiff, awarding

$250,000 and finding defendants 51% negligent. Final judgment

for plaintiff was entered in the amount of $138,643.09, which

included $11,143.09 in prejudgment interest. This appeal

ensued.2 Defendants' request to stay enforcement of the judgment

pending appeal and file a supersedeas bond, Rule 2:9-5(a) and

(b), was granted.

II.

On appeal, defendants challenge the denial of the motion

for directed verdict, the inclusion of the mode-of-operation

liability charge, and the preclusion of plaintiff's past medical

records during cross-examination. We examine these issues.

A.

Defendants contend a directed verdict should have been

granted at the close of evidence because plaintiff produced no

proof of defendants' actual or constructive notice of the

2 Defendants timely electronically filed their notice of appeal. An extension for filing was granted because the system did not transmit the notices.

9 A-2884-12T4 dangerous substance on the premises, or even exactly what

substance was on the floor. We disagree.

In reviewing an order granting or denying a motion for

directed verdict, "we apply the same standard that governs the

trial courts." Frugis v. Bracigliano,

(2003).

Motions for directed verdict at the close of trial, R. 4:40-1,

are governed by the same standard as motions for involuntary

dismissal, pursuant to Rule 4:37-2(b). As applied here, we must

accept as true all evidence presented by plaintiff and the

legitimate inferences drawn therefrom, to determine whether the

proofs are sufficient to sustain a judgment in her favor.

Monaco v. Hartz Mountain Corp.,

(2004).

"[T]he judicial function here is quite a mechanical one. The

trial court is not concerned with the worth, nature or extent

(beyond a scintilla) of the evidence, but only with its

existence, viewed most favorably to the party opposing the

motion." Dolson v. Anastasia,

(1969).

Under Rule 4:37-2(b), a motion for a directed verdict is

granted only if, accepting the plaintiff's facts and considering

the applicable law, "no rational jury could draw from the

evidence presented" that the plaintiff is entitled to relief.

Pitts v. Newark Bd. of Educ.,

(App. Div.

2001). See also R. 4:37-2(b) ("[A] motion shall be denied if

10 A-2884-12T4 the evidence, together with the legitimate inferences therefrom,

could sustain a judgment in plaintiff's favor."). "[I]f

reasonable minds could differ, as to whether any negligence has

been shown, the motion should be denied." Bozza v. Vornado,

Inc.,

(1964) (citing Bell v. E. Beef Co.,

(1964)).

"In general, '[b]usiness owners owe to invitees a duty of

reasonable or due care to provide a safe environment for doing

that which is in the scope of the invitation.'" Stelluti v.

Casapenn Enters., LLC,

(App. Div. 2009)

(quoting Nisivoccia v. Glass Gardens, Inc.,

(2003)), aff'd

(2010). "The duty of due care

requires a business owner to discover and eliminate dangerous

conditions, to maintain the premises in safe condition, and to

avoid creating conditions that would render the premises

unsafe."

(citing O'Shea v. K.

Mart Corp.,

(App. Div. 1997)). See

also Arroyo v. Durling Realty, LLC,

(App. Div. 2013). Such a duty is imposed because "business

owners 'are in the best position to control the risk of harm.'"

Hojnowski v. Vans Skate Park,

(2006) (quoting

Kuzmicz v. Ivy Hill Park Apartments, Inc.,

(1997) (citations omitted)).

11 A-2884-12T4 To recover for injuries suffered, in addition to

establishing a defendant's duty of care, a plaintiff must also

establish the defendant had actual or constructive knowledge of

the dangerous condition that caused the accident. 3 Nisivoccia,

supra,

(citing Brown v. Racquet Club of

Bricktown,

(1984)). "An inference [of

negligence] can be drawn only from proved facts and cannot be

based upon a foundation of pure conjecture, speculation, surmise

or guess." Long v. Landy,

(1961).

"Proof of a fall alone would not be adequate to create an

inference of negligence . . . ." Simpson v. Duffy,

(App. Div.) (citations omitted), certif. denied,

(1952). This is because the mere existence of a

dangerous condition does not, in and of itself, establish actual

or constructive notice.

(citing Sims v. City of Newark,

(Law Div.

1990)). Liability for injuries caused by premises defects is

imposed when a plaintiff establishes a defendant knew or had the

reasonable opportunity to discover and correct the defect.

. "Whether a reasonable opportunity

3 A common law cause of action for negligence has four elements: (1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages. Brunson v. Affinity Fed. Credit Union,

(2009). The plaintiff bears the burden of proving each of these elements.

12 A-2884-12T4 to discover a defect existed will depend on both the character

and duration of the defect."

Consequently, a business

owner will be liable for injuries sustained by an invitee caused

by a dangerous condition on the premises "if . . . the dangerous

condition . . . existed for such a length of time that he should

have known of its presence."

(citations omitted).

Defendants argue no testimony established actual or

constructive notice of the alleged greasy and/or wet floor,

defeating plaintiff's assertion of negligence. Plaintiff

responds, maintaining the facts proved defendants had

constructive notice of the floor's hazardous condition or,

alternatively, that notice is inferred because of the nature and

operation of the business itself.

Following our review, we reject defendants' contention as

we conclude the proofs, when viewed in a light most favorable to

plaintiff, sufficiently evince defendants' constructive notice

of a wet or possibly greasy floor. We save for later our

discussion of the applicability of mode-of-operation liability

to these facts.

Plaintiff's evidence showed she felt the floor where she

fell and found it wet, greasy and slippery. Further, she

noticed the substance was transferred to her clothing. Her

13 A-2884-12T4 daughter and son also experienced the slippery floor as they

went to plaintiff's aid. Testimony demonstrated it was raining

heavily throughout the day, which circumstantially proves rain-

soaked customers entered the restaurant. Although mats were

placed at public entrances, no mats were on the floor in front

of the restrooms and plaintiff testified no mats were at the

entrance on the day of the accident. Employees, including

kitchen employees using grease for frying, used the same

restroom facilities as did the customers, through a common

entrance. Defendants admitted they had no established policy

requiring floors to be inspected periodically, and Lovato

confirmed no inspection or mopping occurred during the four

hours before plaintiff's accident. Finally, despite plaintiff's

fall, Lovato performed only a visual inspection of the site; she

did not physically touch the floor.

Having considered the proofs as a whole, we determine they

are sufficient to allow a rational jury to evaluate whether the

condition of the floor existed for a period of time such that

had defendants exercised reasonable attention to inspect the

floor's condition, defendants' employees would have learned of

the danger and undertaken remedial action. Therefore,

defendants' motion for a directed verdict was properly denied.

14 A-2884-12T4 B.

Defendants next challenge the jury charge. Specifically,

defendants argue the judge failed to properly inform the jury of

plaintiff's obligation to prove notice of the alleged hazardous

condition. Moreover, defendants maintain the judge erred in

directing notice was unnecessary if defendants' mode of

operation created the hazardous condition. We conclude the

court misapplied mode-of-operation liability. Because the

charge had the capacity to mislead the jury, we vacate the

judgment, reverse the verdict, and remand for a new trial. Ruiz

v. Toys R Us, Inc.,

(App. Div. 1994).

In reviewing challenges to jury charges, we do not

criticize small parts of the charge, but examine the charge "as

a whole" to determine whether it "'adequately conveys the law

and is unlikely to confuse or mislead the jury[.]'" Mogull v.

CB Commercial Real Estate Grp.,

(2000)

(quoting Fischer v. Canario,

(1996)). The

charge must "'set forth an understandable and clear exposition

of the issues.'"

(quoting Campos v. Firestone Tire &

Rubber Co.,

(1984)). Reversal of a verdict is

warranted if an instruction lacks evidential support, is likely

to mislead the jury, and will cause an unjust result. Mandal v.

Port Auth. of N.Y. & N.J.,

(App. Div.),

15 A-2884-12T4 certif. denied,

(2013). See also Finderne Mgmt. Co.,

Inc. v. Barrett,

(App. Div. 2008)

("Erroneous instructions on a material part of the charge

are . . . presumed to be reversible."), certif. denied,

(2004).

The law recognizes "certain distinctive instances" where

the nature of self-service business operations may result in

dangerous conditions to invitees.

. "The rule is a very limited exception to the

traditional rules of business premises liability. . . . "

Carroll v. N.J. Transit,

(App. Div.

2004) (emphasis added). When applicable, an injured plaintiff

is relieved of proving actual or constructive notice where, "as

a matter of probability, a dangerous condition is likely to

occur as the result of the nature of the business, the

property's condition, or a demonstrable pattern of conduct or

incidents."

.

The mode-of-operation doctrine is an extension of the

general principle that when a proprietor creates a dangerous

condition, "notice, actual or constructive, of [that] dangerous

condition is not required . . . ." Craggan v. IKEA U.S.,

(App. Div. 2000) (citations omitted). See

also Smith v. First Nat. Stores,

(App.

16 A-2884-12T4 Div. 1967) ("Notice, either actual or constructive, is not

required where a defendant . . . creates a dangerous

condition."). More specifically, the mode-of-operation doctrine

provides:

[W]hen a substantial risk of injury is inherent in a business operator's method of doing business, the plaintiff is relieved of showing actual or constructive notice of the dangerous condition. The plaintiff is entitled to an inference of negligence, shifting the burden of production to the defendant, who may avoid liability if it shows that it did all that a reasonably prudent man would do in the light of the risk of injury the operation entailed. Thus, absent an explanation by defendants, a jury could find from the condition of the premises and the nature of the business that defendants did not exercise due care in operating the establishment, and that said negligent operation was the proximate cause of the injuries. The ultimate burden of persuasion remains, of course, with the plaintiff.

[Nisivoccia, supra,

(internal citations and quotation marks omitted)].

See also Model Jury Charge (Civil), 5.20F(11), "Notice Not

Required When Mode of Operation Creates Danger" (1970).

Our review of the authority applying mode-of-operation

liability does not support a conclusion that the doctrine

applies merely because a defendant operates a type of business.

Rather, the unifying factor in reported opinions is the

negligence results from the business's method of operation,

17 A-2884-12T4 which is designed to allow patrons to directly handle

merchandise or products without intervention from business

employees, and entails an expectation of customer carelessness.

. When mode-of-operation

liability has been applied, courts have examined whether the

defendant's identified business operations encompassed self-

service facilities that led to a risk of harm to the plaintiff.

In Bozza, the plaintiff's fall occurred when she slipped on

a "sticky," "slimy" substance, on the "littered" and "dirty"

floor, that also contained "drippings, paper straw holders,

napkins and dirt" at the counter eating area in the "self-

service cafeteria type" restaurant located within the

defendant's store.

. Although not

invoking the phrase "mode of operation," the Court

pointed out that spillage by customers was a hazard inherent in that type of business operation from which the owner is obliged to protect its patrons, and we held that when it is the nature of the business that creates the hazard, the inference of negligence thus raised shifts the burden to the defendant to "negate the inference by submitting evidence of due care."

[Nisivoccia, supra,

(quoting

).]

The Supreme Court concluded:

Thus, we believe that when plaintiff has shown that the circumstances were such as to create the reasonable probability that the

18 A-2884-12T4 dangerous condition would occur, he need not also prove actual or constructive notice of the specific condition. Factors bearing on the existence of such reasonable probability would include the nature of the business, the general condition of the premises, [and] a pattern of conduct or recurring incidents.

[Bozza, supra,

).]

The Wollerman Court was the first to employ the phrase

"mode of operation" when discussing the risk of injury caused by

a business practice. Wollerman, supra, 47 N.J. at 429. The

plaintiff was injured when she slipped on a loose string bean on

the grocery store floor where the store's produce displays

allowed customers to select items from the open bins. Id. at

428. The Court found these facts presented a sufficient

probability "to permit such an inference in the absence of

evidence that [the] defendant did all that a reasonably prudent

man [or woman] would do in the light of the risk of injury his

operation entailed" because "greens . . . sold from open bins on

a self-service basis," creates "the likelihood that some will

fall or be dropped to the floor." Id. at 429. The Court stated:

If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator's vigilance must be commensurate with that risk.

[Ibid. (citations omitted).]

19 A-2884-12T4 The Supreme Court next reviewed the doctrine in Nisivoccia

and concluded the plaintiff was entitled to a mode-of-operation

instruction where a grocery store patron slipped on a grape near

the checkout area, rather than in the produce aisle.

. The Court held:

A location within a store where a customer handles loose items during the process of selection and bagging from an open display obviously is a self-service area. A mode- of-operation charge is appropriate when loose items that are reasonably likely to fall to the ground during customer or employee handling would create a dangerous condition.

. . . .

[B]ecause of the way the grapes were packaged, they could easily have fallen out when accidentally tipped or upended in a shopping cart anywhere in the store. The open and air-vented bags invited spillage. It was foreseeable then that loose grapes would fall to the ground near the checkout area, creating a dangerous condition for an unsuspecting customer walking in that area.

[Id. at 565.]

The factual scenarios giving rise to mode-of-operation

liability examined by this court similarly reflect business

entities that allowed customers to assume tasks, making it

reasonably foreseeable customer carelessness would create a

dangerous condition. Thus, the business was on notice of the

inherent risk created by its business practice, warranting an

20 A-2884-12T4 inference of negligence with a corresponding shift in the burden

to the defendant-business to prove it acted with due care.

In Craggan, the plaintiff, a contracted delivery driver,

became entangled on discarded string the defendant provided to

customers to secure merchandise removed from the store.

. This court determined:

[The] plaintiff was injured by conditions in the loading area implemented by [the defendant] IKEA to facilitate removal of merchandise by patrons who had elected to transport merchandise in their own vehicles. IKEA's mode of operation to facilitate self- service removal of purchased items created a reasonable probability that the string would not be properly coiled in its container after each use, would accumulate in the loading area, and create a tripping hazard for anyone using the area.

[Id. at 63.]

In Ryder v. Ocean Cnty. Mall,

(App.

Div.), certif. denied,

(2001), we reversed a

directed verdict for the defendant in the plaintiff's action for

injuries suffered when she slipped on a spilled drink outside

the food court area while holiday shopping. Id. at 507-08.

We found the defendant did

not restrict the carrying of, or consumption of, food and drink anywhere in the common areas of the Mall. Indeed, near the planter where [the plaintiff] fell, patrons are accustomed to sit and eat. . . . Given that mode of operation, the Mall becomes the functional equivalent of a cafeteria. It

21 A-2884-12T4 was not uncommon to get reports of one or more spills every day and more spills are reported on weekends and during the holiday season. The Mall, therefore, can reasonably be charged with notice that food and drink spills are likely to occur and do occur anywhere and at any time in the common areas.

[Id. at 509.]

In Znoski v. Shop-Rite Supermarkets, Inc.,

(App. Div. 1973), this court rejected application of mode-

of-operation liability where the plaintiff was injured by a

youth who failed to control a metal shopping cart provided to

customers by the defendant.

. We examined the

duty imposed on the defendant by furnishing the carts, but also

observed they did not create a hazardous method of business

operations, stating: "We are unable to say that a substantial

risk of injury is implicit, or inherent, in the furnishing of

shopping carts to patrons by a store proprietor. Shopping carts

are not dangerous instrumentalities, and they are uniquely

suitable for the purpose for which furnished."

Understanding the parameters of mode-of-operation liability,

we emphasize the need to examine the facts of each individual

case. Turning to the facts presented here, we first consider

the basis articulated by the trial judge to include a mode-of-

operation liability charge.

22 A-2884-12T4 During the charge conference, plaintiff argued mode-of-

operation liability applied. See Model Jury Charges (Civil),

5.20F(11), "Notice Not Required When Mode of Operation Creates

Danger,” (1970). Plaintiff mentioned the floor was greasy,

grease was used in the restaurant's food preparation, and Gross

acknowledged grease "possibly" could have been tracked onto the

customer floor area by a kitchen employee on the way to the

restroom. Plaintiff next suggested defendants' business

operation lacked a definitive policy requiring the floor to be

inspected at set intervals. The judge considered these

assertions, adding defendants' business was a "fast food

store . . . and a lot of people tracking in and out." He

further found defendants' safety policy required the use of a

warning cone when it rained. The judge concluded: "Putting that

all together I think there's [sic] enough facts to make the

inferences and the arguments to the jury." Accordingly, the

judge applied mode-of-operation liability and overruled

defendants' contrary objection.4

4 The mode-of-operation charge included in the jury instructions was as follows:

A proprietor of business premises has the duty to provide a reasonably safe place for his or her customers. If you find the premises were in a hazardous condition[,] . . . whether caused by defendant[s'] employees or by others[,] such

23 A-2884-12T4 The conclusion that these facts invoked mode-of-operation

liability was unfounded and erroneous. Mode-of-operation

liability does not apply merely because defendants operated a

as . . . other customers and if you find that said hazardous condition was likely to result from the particular manner in which defendant[s'] business was conducted and if you find that defendant[s] failed to take reasonable precautions to prevent the hazardous condition[] from arising or failed to take reasonable measures to discover and correct such hazardous condition, then defendant[s are] liable to plaintiff.

In these circumstances defendant[s] would be liable even if defendant[s] and his or her employees did not have actual or constructive knowledge of the particular unsafe condition[,] which caused the accident and injury. A proprietor business premises has the duty to provide a reasonably safe place for his or her customers. If you find that a hazardous condition was likely to arise in a particular manner in which defendant[s'] business was conducted and that defendant[s'] employees probably were responsible either in creating such a hazardous condition or permitting it to arise or to continue, defendant[s are] liable to plaintiff if defendant[s] failed . . . to exercise reasonable care to prevent such hazardous condition from arising or failed to . . . exercise reasonable care to discover and correct such hazardous condition.

In these circumstances defendant[s] would be liable even if defendant[s] and his or her employees did not have actual or constructive knowledge of the particular unsafe condition[,] which caused the accident and injury.

24 A-2884-12T4 fast food restaurant. Rather, plaintiff must establish a causal

nexus between the fast food or other business operation and the

harm causing her injuries.

Contrary to the trial judge's conclusion, defendants'

business as a "fast-food operation" has no relationship to

plaintiff's fall. There is no link between the manner in which

the business was conducted and the alleged hazard plaintiff

slipped on or its source. No testimony showed the alleged

wet/greasy floor was the result of a patron's spilled drink or

dropped food. Further, there was no evidence the restaurant's

floor was ill-kept, strewn with debris or laden with overflowing

trash.

Our dissenting colleague suggests we have narrowed mode-of-

operation liability to apply solely "to businesses where

customers use self-service facilities." Post at __ (slip op. at

6). Every reported opinion applying mode-of-operation liability

in fact examines the self-service aspect of the defendant's

business operations, which was found to have created the

hazardous condition, causing the plaintiff's injury. From this

we conclude the self-service mode-of-operation has resulted in

the doctrine's development. Again, mode-of-operation liability

results when a plaintiff suffers injury because the mode or

manner of the business operation creates the dangerous condition

25 A-2884-12T4 on the premises. This concept does not lead to broad

application. Although mode-of-operation can cause a dangerous

condition, resulting in the owner's liability, not all dangerous

conditions arising in the operation of a business satisfy the

mode-of-operation theory of liability. It is on this point that

we part company with the views expressed in the dissent.

Therefore, mode-of-operation liability is distinguishable from

liability imposed when an owner creates or fails to remove a

known dangerous condition on premises, such as found in

.

When determining whether mode-of-operation liability exists,

it is a mis-characterization to label a type of business, such

as the trial judge did here, as invoking the doctrine. Just

because a business is a fast-food restaurant or has self-service

facilities does not prompt mode-of-operation liability. To

trigger mode-of-operation liability, a plaintiff must identify

facts showing a nexus between the method or manner in which the

business is operated when extending products or services to the

public, and the harm alleged to have caused the plaintiff's

injury.

The additional facts identified by the dissent fail to

establish a business operation that created an inherently

dangerous risk warranting inclusion within the narrow scope of

26 A-2884-12T4 mode-of-operation liability. Although defendants' restaurant

used oil to prepare fried food and spills occurred at times in

the kitchen area, these facts do not implicate customer conduct

in the operation of the business, which is the rationale

underlying application of the mode-of-operation doctrine. Even

after adding Gross's testimony, as cited by the dissent, post at

___ (slip op. at 1-2), the facts at best raise a mere

possibility that the greasy floor resulted from a kitchen

employee. The comments do not "create the reasonable

probability that the dangerous condition would occur[,]"

(emphasis added)). See also

("[The defendant]'s mode of

operation to facilitate self-service removal of purchased items

created a reasonable probability that the string would not be

properly coiled in its container after each use, would

accumulate in the loading area, and create a tripping hazard for

anyone using the area." (emphasis added)).

In reaching his conclusion, our dissenting colleague

relies solely on this court's holding in

. We cannot abide such a rationale because the

facts in Smith are distinguishable from those here presented,

and, in concluding defendant created a dangerous condition on

27 A-2884-12T4 its property, the Smith court did not apply mode-of-operation

liability.

In Smith, the plaintiff slipped on sawdust located on a

stairwell used to access the restroom.

. "There was

evidence that prior to the accident sawdust was commonly

observed upon the stairway[.]"

Sawdust was used on the

floor of the meat department and in the produce department.

. The stairs were five feet from the store's meat

department.

. "[E]mployees used the stairway about

seven or eight times a day, or a total of 180 times a day for

all employees."

.

We determined, "the evidence was such that a jury could

legitimately conclude that the greasy, slippery state of the

stairway in reasonable probability resulted from the tracking of

the sawdust upon the stairway -- not by customers -- but by

defendant's own employees."

. Thus, the plaintiff

was not required to prove the defendant had notice of the

condition because its employees created the dangerous condition.

(citations omitted).

In Smith, the issue before the trial court was whether the

defendant had constructive notice of the hazardous condition of

the stairway. Smith,

. The trial judge

applied the holding in Bozza, stating plaintiff's proofs created

28 A-2884-12T4 "the reasonable probability that the dangerous condition did

occur" from the defendant's conduct.

In our review of

this determination, we expressed "doubt of [the] complete

applicability [of the doctrine] to the facts of this case."

We continued:

In Bozza, the culpable conditions arose from the conduct of customers of defendant's restaurant and cafeteria. The court in effect held that there inhered in the nature of defendant's operation a foreseeable hazard that the floor would become littered and therefore that notice, actual or constructive, was not required.

Here, as we have indicated, the evidence was such that a jury could legitimately conclude that the greasy, slippery state of the stairway in reasonable probability resulted from the tracking of the sawdust upon the stairway — not by customers — but by defendant's own employees. Notice, either actual or constructive, is not required where a defendant through its agents and employees creates a dangerous condition. Compare Torda v. Grand Union Co.,

(App. Div. 1959), Plaga v. Foltis,

(App. Div. 1965).

[Ibid.]

It is important to note we did not find the conduct of the

defendant's employees in tracking sawdust on the stairway fit

within the narrow exception of mode-of-operation liability, even

though Wollerman, supra, 47 N.J. at 426, which defined the

doctrine, had been decided by the Court a year earlier. Rather,

29 A-2884-12T4 in Smith, like this case, the facts presented issues of

negligence unrelated to defendants' mode of operation.

This record is devoid of proof plaintiff fell on grease

caused by defendants' fry cook who used the restroom. Plaintiff

could not identify with any certainty the substance she thought

caused her fall, alternating her description of the foreign

substance between grease and water. The evidence marshalled by

plaintiff may tend to show defendants had constructive notice

that the restaurant floor was greasy. Moreover, even if the

record revealed the fry cook used the restroom prior to

plaintiff's fall and, in doing so, tracked grease onto the floor

area leading to the restroom, the mode-of-operation doctrine

would not apply. The doctrine's focus is not upon the conduct

of the establishment's employees. Rather, the focus is upon the

business model that encourages self-service on the part of the

customer, which can reasonably and foreseeably create a risk of

harm to the customer. Nisivoccia,

.

The specific facts identified by plaintiff and the judge

during the charge conference, as listed in the dissent, address

defendants' duty to guard against wet/greasy floors and invoke

defendants' duty to periodically inspect the customer dining

area floor for foreign substances. So too, defendants' alleged

inaction or ineffective conduct despite the heavy downpour may

30 A-2884-12T4 tend to prove constructive notice of an unattended wet floor

(although we note, contrary to the judge's statement, there was

no testimony of a high volume of traffic in the restaurant and

plaintiff herself testified there was only one patron present).

Unlike the precedents we have discussed, plaintiff cannot

identify defendants' business practice that created an implicit

or inherent danger likely to cause the resultant injury she

sustained. See e.g.,

(holding the defendant's provision of shopping carts to

customers does not trigger mode-of-operation liability in the

plaintiff's action for injury caused when a youth struck him

with a cart).

This same analysis holds true if the foreign substance is

water. The bulk of plaintiff's evidence suggested water from

the rain and possibly from her own wet shoes and clothing caused

her fall. She produced no evidence showing, as a matter of

probability, the presence of rain water on defendants'

restaurant floor was "likely to occur as a result of the nature

of the [defendants'] business, the property's condition or a

demonstrable pattern of conduct or incidents."

. That defendants failed to erect a

warning sign or inspect the floor supports her claim of

31 A-2884-12T4 negligence, but not mode-of-operation liability, making use of

that jury instruction error.

We, therefore, decline to paint with the same broad brush

used by our dissenting colleague, who suggests defendants'

actions or omissions in the course of operating a business must

be attributed to its mode-of-operation. Post at __ (slip op. 4,

7-9). Rather, mode-of-operation liability is applied only in

limited circumstances that are not demonstrated here. These

facts at hand may prove defendants breached their duty to

plaintiff or that defendants had constructive notice of an

inherently dangerous condition, but they do not reflect a danger

posed by defendants' business operations.

We also note the judge specifically rejected inclusion of

subpart 8 of the Model Charge addressing notice of a danger

located on a business property, which provides:

If you find that the land (or premises) was not in a reasonably safe condition, then, in order to recover, plaintiff must show either that the owner/occupier knew of the unsafe condition for a period of time prior to plaintiff’s injury sufficient to permit him/her in the exercise of reasonable care to have corrected it, or that the condition had existed for a sufficient length of time prior to plaintiff’s injury that in the exercise of reasonable care the owner/occupier should have discovered its existence and corrected it.

32 A-2884-12T4 [Model Jury Charges (Civil), 5.20F8, "Notice of Particular Danger as Condition of Liability" (1970).]

We conclude this charge properly addresses the liability

question posed by the facts of this case. The jury should have

been asked to consider whether plaintiff proved defendants

breached their duty to provide a safe premises for invitees by

failing to act when it knew or should have known of the danger

posed by the rain on tile floors. The omission of the

applicable legal standard from the jury instruction along with

the inclusion of mode-of-operation liability charge was error.

Because the jury charge used here was clearly capable of

misleading or confusing the jury, we vacate the verdict and

remand for a new trial.

C.

Defendants' final challenge attacks the evidentiary

determinations by the court excluding the use of plaintiff's

prior medical records on cross-examination. Defendants argue

the trial court erred in limiting cross-examination of plaintiff

and her expert regarding plaintiff's prior complaints and

symptoms of back and neck pain. 5 As noted below, this record is

5 The record suggests some documents were marked for identification at trial. However, there is no differentiation among the sixty-three pages of records included in defendants' appendix from various providers treating plaintiff in 2002, 2004, 2005, 2006, 2007, 2009, and 2010. Many records are hand-written

33 A-2884-12T4 6 insufficient to allow our definitive review of these issues.

However, because we have ordered a new trial, we include these

comments for guidance if the matter arises on retrial.

At trial, plaintiff described her injuries. On cross-

examination, she was asked whether she had made complaints of

pain or sought medical treatment for these same areas of her

body, prior to her fall. She responded she did not remember.

Plaintiff was confronted with her deposition testimony, which

unequivocally stated she had never sought treatment or

complained of pain in her legs, neck, or back or for tingling or

numbness in her arms. Defendants then proceeded to ask

plaintiff if she sought medical treatment in 2002, after

complaining of back pain, which was met by a hearsay objection.

and indecipherable. Treatments addressed varied conditions and complaints, among which were 2004 cervical spine x-rays, revealing "mild loss of intervertebral disc height" and "early spur formation"; cervical nerve impingement; neck and "upper back" pain, shoulder blade pain, left leg pain from bursitis; left knee pain and sprain after a fall in November 2009; left arm numbness; and a December 2010 fall down steps, resulting in a diagnosis of lumbar stenosis and degenerative joint disease. 6 Generally, our review of a trial court's evidentiary rulings determines whether the judge properly exercised discretion. Villanueva v. Zimmer,

(App. Div. 2013). It is only when the trial court "'fails to apply the proper test in analyzing the admissibility of proffered evidence'" that our review is plenary.

(quoting Konop v. Rosen,

(App. Div. 2012)).

34 A-2884-12T4 At sidebar, the judge rejected defendants' claim the

documents were admissible as business records and sustained the

objection, stating:

So you're asking that the [c]ourt let in medical records without — just because it's for impeachment purposes because you found some medical record that perhaps may contradict her credibility . . . .

But just interpreting that the findings of the doctor and the history that he took is the same as the injuries she claims about today that's what you want the jury to make a credibility determination to find that she's not credible because some other doctor made note that she had perhaps similar complaints to similar body parts. I don't think that's enough. That's just too much hearsay.

. . . .

I'm going to preclude you from using these notes to pick out another person's opinion without presenting the opinion of the doctor as to what the complaint resulted in after physical examination.

Hearsay statements are inadmissible unless they fall within

a designated exception. N.J.R.E. 802. However, N.J.R.E.

803(c)(6) excepts from the hearsay rule

[a] statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of

35 A-2884-12T4 that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

The business records exception "routinely permits the admission

of medical records."

. To

qualify under the business record exception to the hearsay rule:

[T]he proponent must satisfy three conditions: "First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence."

[Ibid. (quoting State v. Sweet,

(2008)).]

With regard to the reliability of the source of information,

this court has stated "'one of the critical circumstances

importing reliability is the fact that the informant whose

declaration is so recorded is under a duty, in the context of

the activity in which the record is made, to make an honest and

truthful report.'"

at 404 (quoting State v. Lungsford,

(App. Div. 1979)). "'There is a presumption,

absent contrary testimony, that those responsible for services

to the public will carry out their duties in a proper, careful

and prudent manner.'"

(quoting State v. Matulewicz,

(1985)).

36 A-2884-12T4 In this matter, an objection was made to defendants'

inquiry regarding plaintiff's prior medical treatment, after she

asserted she had had none. That question, as posed, was not

objectionable. Nor was the use of specific medical records to

attempt to refresh plaintiff's recollection inappropriate,

particularly as she stated she could not remember.

Courts have ruled pre-accident health records are

admissible to test a plaintiff's credibility. See Ocasio v.

Amtrak,

(App. Div. 1997) (history of

drug abuse and other personal issues was relevant to credibility

of damage claim arising from personal injury); Allendorf v.

Kaiserman Enters.,

(App. Div. 1993)

(allowing introduction of "evidence that plaintiff had episodes

of passing out prior to the accident[, which] was admissible for

the purpose of impeaching the credibility of her testimony that

she was 'in perfect health' and had never had 'any problem with

blacking out' prior to the accident"). "It has long been the

rule in New Jersey that the declarations of a patient as to his

[or her] condition, symptoms and feelings made to his [or her]

physician for the purpose of diagnosis and treatment are

admissible in evidence as an exception to the hearsay rule."

Cestero v. Ferrara,

(1971). See also N.J.R.E.

803(c)(4) ("Statements made in good faith for purposes of

37 A-2884-12T4 medical diagnosis or treatment which describe medical history,

or past or present symptoms, pain, or sensations" are "not

excluded by the hearsay rule[.]").

On this record, we are unable to discern exactly what

records or alleged statements attributed to plaintiff defendants

sought to admit. First, no proffer was made identifying the

specific records to be used. Defendants' obligation is to

identify the specific record, or portion thereof, claimed to be

exempt and demonstrate its admissibility. We do not fault the

judge for rendering a general ruling when confronted for the

first time at trial with voluminous records claimed to be

business records. Second, the judge correctly identified the

prospect of inadmissible hearsay imbedded within possibly

admissible documents. See N.J.R.E. 805. If the issue arises on

remand, the subject may be best analyzed by motion presenting a

specific proffer and allowing a detailed review.

The judge also limited the use of plaintiff's past medical

records during cross-examination of Dr. Tiedrich. Noting

plaintiff had not provided her expert with any pre-accident

treatment records, defendants presented Dr. Tiedrich with a

September 6, 2007 x-ray report of plaintiff's lumbar spine.

Plaintiff objected, maintaining the records were hearsay.

38 A-2884-12T4 "Extensive cross-examination of experts is generally

permitted, subject to reasonable limitations imposed by the

trial court in its discretion." Nowacki v. Cmty. Med. Ctr.,

(App. Div.), certif. denied,

(1995). Absent a showing of "clear error and prejudice[,]" this

court will not interfere with the trial court's exercise of

discretion. Ibid. (quoting Glenpointe Assocs. v. Twp. of

Teaneck,

(App. Div.), certif. denied,

(1990)).

In Allendorf, this court found the defendant established

the possibility of an alternative medical cause by confronting

plaintiff's expert on cross-examination with facts concerning

plaintiff's medical history.

. The plaintiff alleged she suffered a seizure

disorder after being injured by an elevator door.

. The defendant asked the plaintiff's neuropsychiatrist

whether information about the plaintiff's complaints of "passing

out" and severe chest pain prior to the accident would change

her opinion concerning the cause of the plaintiff's alleged

seizure disorder.

. We held "[a] party seeking to

present evidence of a prior injury or condition relating to an

issue of medical causation must show that the evidence has some

'logical relationship to the issue in the case.'"

at 672

39 A-2884-12T4 (quoting Paxton v. Misiuk,

(1961)). "[T]his

logical relationship generally must be established by

appropriate expert medical opinion."

Here, the judge's prior ruling precluded defendants'

inquiry of plaintiff regarding the nature of her 2007 back

treatment necessitating x-rays. Were defendants able to

establish the logical relationship of that treatment to her

current complaints, the questions posed to the expert should

have been permitted.

Following our review, we affirm the denial of defendants'

motion for a directed verdict. However, we reverse the

determination that mode-of-operation liability applied in this

case. Accordingly, we vacate the verdict and remand for a new

trial.

Affirmed in part; reversed in part; and remanded for a new

trial.

40 A-2884-12T4 ________________________________

HOFFMAN, J.A.D., concurring in part and dissenting in part.

I agree with the majority in rejecting defendants'

challenges to the trial court's rulings denying their motion for

a directed verdict, and limiting use of plaintiff's past medical

records during cross-examination; however, I part company with

my colleagues' finding of trial error in the inclusion of the

mode-of-operation liability charge. Because I am satisfied the

record supports the trial judge's decision to provide the jury

with the mode-of-operation charge, I respectfully dissent.

As part of plaintiff's case, counsel read into the record

the following deposition testimony from Cheryl Lynn Gross, an

employee who held a position equivalent to district manager for

eight KFC restaurants in New Jersey, including the one where

plaintiff's accident occurred:

Q: How is the chicken cooked?

A: In split vat fryers. It's an open fryer. . . . And then you have pressure cookers and that's where the originals are cooked in the pressure cookers.

Q: Is there oil in the pressure cookers?

A: Yes.

Q: Is there oil in the split vat fryers?

A: Yes. . . . .

Q: Is the floor in the kitchen area tiled?

A: Yes.

Q: Are there any mats in the kitchen?

A: No

Q: Whatever goes on in the kitchen during the course of the day[,] if there is spillage or anything like that, it ends up on the floor?

A: Yes, and they mop it.

Q: How often do they mop the kitchen?

A: Maybe twice a day, three times a day when they get oil on the floor.

Q: And, if people are in the kitchen along the cook line and there is oil on the floor, they can get it on their footwear, correct?

A: Possibly.

. . . .

Q: [What] if they have to go to the restroom or ladies room[,] they can be tracking it?

A: Possibly.

Plaintiff's counsel also provided the jury with the

following deposition testimony from Debbie Lovato, the assistant

manager who was present at the time of plaintiff's fall:

Q: Do you remember when the rain started and when it stopped without guessing?

A: Not really, no.

2 A-2884-12T4 Q: You don't remember the names of the other people who were there?

A: No, I do not. We have people come and go all the time.

. . . .

Q: You personally don't recall inspecting the floor yourself from two o'clock up until the time of the accident, correct?

A: Correct.

Q: Do you recall looking at or examining anyone else or asking them if they inspected the floor from the time you got on up until the time of the accident?

. . . .

A: I don't remember.

. . . .

Q: Did you go down on your hands and knees and inspect the floor to see what[,] if anything[,] was on the floor?

A: No.

Q: Did anybody else?

A: Not that I'm aware of, no.

. . . .

Q: Did you take a clean cloth or a rag or anything and wipe the floor after the incident to see what[,] if anything[,] was on the floor?

A: No, I did not.

3 A-2884-12T4 On direct examination, Lovato explained the routine for

cleaning the floor in the kitchen where the chicken is cooked,

and the floor in the dining area, stating "we're color coded.

We have a blue mop for the kitchen and we have a yellow mop

that's strictly for the dining room . . . area."

The record indicates that KFC employees, including kitchen

employees who attended to the open vat chicken fryers, used the

same restroom facilities as the customers, through a common 1 entrance. Despite this fact, defendants had no established

policy requiring periodic inspections of the floors, either

generally or in the area between the kitchen and restroom doors.

Further, Lovato confirmed no inspection or mopping occurred

during the four-hour period before plaintiff's accident.

Indeed, a business owner has a duty to provide a safe

environment for its invitees. Nisivoccia v. Glass Gardens, Inc.,

(2003). This duty of care "requires a

business owner to discover and eliminate dangerous conditions,

to maintain the premises in safe condition, and to avoid

1 Although the record does not contain specific testimony regarding restroom usage by KFC workers on the date of plaintiff's accident, the restaurant had been open approximately seven hours by the time of her fall, a sufficient period of time to make it reasonably probable one or more workers would have used the restroom during that period. Moreover, the record indicates the restrooms were checked every half hour when the customer tables were wiped.

4 A-2884-12T4 creating conditions that would render the premises unsafe."

Because business operators are in the best position to

prevent the risk of harm to their customers, it is fair to hold

them responsible for injuries caused by their negligence. See

Hojnowski v. Vans Skate Park,

(2006). Unlike

the customer, "[t]he operator of a commercial recreational

enterprise can inspect the premises for unsafe conditions, train

his or her employees with regard to the facility's proper

operation, and regulate the types of activities permitted to

occur."

Nevertheless, business owners are generally not liable for

injuries caused by dangerous conditions of which they were not

aware. Brown v. Racquet Club of Bricktown,

(1984). Ordinarily, the burden is upon the plaintiff to prove

"that the defendant had actual or constructive knowledge of the

dangerous condition that caused the accident."

.

When the very "nature of the business . . . creates the

hazard," however, the "mode-of-operation rule" creates an

inference of negligence and "shifts the burden to the defendant

to 'negate the inference by submitting evidence of due care.'"

(quoting Bozza v. Vornado,

Inc.,

(1964)). This inference relieves the

5 A-2884-12T4 plaintiff of proving the defendant had actual or constructive

notice of the dangerous condition and instead requires the

defendant to show it did "all that a reasonably prudent [person]

would do in light of the risk of injury [the mode-of-operation]

entailed." Wollerman v. Grand Union Stores, Inc.,

(1966). If the defendant provides no explanation, the facts

presented by the plaintiff should allow a jury to find "from the

condition of the premises and the nature of the business that

[the defendant] did not exercise due care in operating the

[business], and that said negligent operation was the proximate

cause of [the plaintiff's] injuries."

.

I agree with the majority that mode-of-operation liability

does not apply merely because a defendant operates a fast food

restaurant. Ante at ___ (slip op. at 17). I further agree the

unifying factor in these cases is the defendants' method of

business operation, but I disagree with the assertion that mode-

of-operation liability is limited to businesses where customers

use self-service facilities. Id. at 18. Instead, mode-of-

operation liability applies where there is a "risk of injury

6 A-2884-12T4 inherent in the nature of the defendant's operation."

.2

Plaintiff relies on Smith v. First National Stores, Inc.,

(App. Div. 1967), to support her position

that she did not need to present evidence defendant had notice

of the substance on the floor on the day she fell because there

was sufficient evidence for a jury to draw a legitimate

inference that the greasy floor was caused by defendants'

employees. In Smith, the plaintiff was a supermarket patron who

slipped on an interior stairwell leading to a restroom.

. Evidence was introduced at trial indicating that the meat

department "was about five feet away from the foot of the

stairway."

"[P]rior to the accident sawdust was commonly

observed upon the stairway," which could have come from the meat

or produce departments because employees frequently used those

stairs to access the restroom.

. Neither actual

nor constructive notice was deemed necessary because evidence

2 Although I do not share the majority's view that limits mode- of-operation liability to businesses that allow self-service, ante at ___ (slip op. at 18), I note the record does reflect that defendants' restaurant has a self-service soda fountain. While I believe the presence of this fountain reasonably charged defendants with notice that drink spills are likely to occur, I concede the record does not implicate the fountain in plaintiff's fall as she described the substance as "grease" and her daughter used the term "greasy." Thus, the record does not indicate a nexus between defendants' self-service soda fountain and the substance that caused plaintiff's fall.

7 A-2884-12T4 existed the defendant had created a dangerous condition "through

its agents and employees. . . ."

. Essentially, the

court found the plaintiff did not have to prove that the

defendant had notice of the dangerous condition because evidence

indicated the defendant itself created the hazard.

Here, the record indicates plaintiff's fall occurred about

five feet outside of the restroom entrance. Plaintiff testified

that her hands hit the floor and it felt like the floor had

grease mixed with water on it. Plaintiff's son Richard

testified, "I went over to her and I tried to pick her up but I

started to slip also. So Adriana, my sister[,] ran over also

and tried to guide her up [but] [s]he started to slip[.]"

Richard and Adriana required the assistance of another patron in

the restaurant to finally get their mother up. Adriana

testified the floor "was wet and it felt like it was greasy.

I've actually worked in a restaurant as well and it just felt

like it was just greasy and it wasn't mopped properly."

The record clearly shows that KFC was aware the kitchen

floor required special attention as evidenced by the practice of

having separate mops for use in the kitchen and dining areas. 3

3 While color-coded mops demonstrated some effort by KFC to address the problem posed by grease in the kitchen, it also highlighted the difficulty in effectively cleaning grease so as to prevent workers from tracking grease into the dining and restroom areas.

8 A-2884-12T4 Because workers in the kitchen used the same restrooms as

patrons of the restaurant, the area between the kitchen and the

restrooms could reasonably be expected to encounter grease from

the workers' shoes when they used the restroom facilities. 4 Just

as KFC had actual notice of the condition of the kitchen floor

and had taken steps to address it, we can infer that KFC had

constructive notice of the condition of the floor between the

kitchen and the restrooms as well. It was "circumstantially

inferable" that the presence of the greasy substance described

by plaintiff and her children was "substantially attributable"

to the use of the restrooms by the workers in the kitchen.

.

I do not find the majority's attempt to distinguish Smith

persuasive. Ante at ___ (slip op. at 27-29). In Smith, the

store manager "testified that the purpose of the sawdust around

the meat department was to 'keep the meat floor from a sliding

condition,'" and we concluded it was thus "inferable that such

sawdust would pick up meat or fat droppings."

. Here, the testimony of defendants' district

manager acknowledged that oil on the floor could be tracked

outside the kitchen. Although she tried to minimize the impact

4 The properties and hazards posed by kitchen grease are common knowledge and well within the ken of the average juror.

9 A-2884-12T4 of her responses by indicating "possibly," neither the jury nor

the judge was obligated to accept this self-serving

qualification when it flies in the face of logic and human

experience. Simply put, when persons get cooking oil or grease

on the soles of their shoes, one can reasonably expect they will

track that substance as they walk about, leaving residue.

I see no significant distinction between the sawdust used

by the meat department in Smith and the multi-colored mops used

by KFC. Each represented a well-intentioned, but far-from-

perfect, effort to address problems posed by the tracking of

substances that reach the floor in the preparation of food. The

sawdust used almost fifty years ago to address the problem posed

by a greasy, slippery floor may seem rudimentary today; however,

aside from the plaintiff's accident, there is no indication of

any other accidents in Smith, even though the stairway where the

accident occurred was used 180 times a day for all employees, as

well as an unstated number of patrons, like the plaintiff.

While the sawdust may have been effective most of the time, the

evidence was, nevertheless, "such that a jury could legitimately

conclude that the greasy, slippery state of the stairway in

reasonable probability resulted from the tracking of the sawdust

upon the stairway — not by customers — but by defendant's own

employees."

.

10 A-2884-12T4 Similarly here, while the multi-colored mops may have been

effective most of the time, the evidence was such that a jury

could conclude with reasonable probability that the greasy,

slippery floor outside the ladies restroom where plaintiff fell,

resulted from the tracking of oil or grease from KFC's kitchen

by defendants' own employees. Plaintiff described the floor

where she fell as "grease and water" and her daughter used the

term "greasy"; their testimony, if found credible by the jury,

was certainly competent to establish the dangerous condition of

the floor related to defendants' mode of operation.

I believe the majority places undue emphasis upon the court

in Smith expressing "some doubt" as to the "complete

applicability" of mode-of-operation liability to the facts

presented there.

(emphasis added). Unfortunately,

the court in Smith did not provide any explanation for its

reservation.

Nevertheless, such language hardly

constituted a complete rejection of the applicability of the

doctrine. Instead, the court in Smith chose to reverse on the

narrow basis that the evidence at trial could support the

conclusion that the slippery stairway resulted from the tracking

of sawdust by defendant's own employees.

The majority interprets Nisivoccia as indicating a

limitation of the mode-of-operation doctrine to proprietors

11 A-2884-12T4 whose business model "encourages self-service on the part of the

customer." Ante at ___ (slip op. at 30). While Nisivoccia did

involve a slip and fall in a supermarket on grapes loosely

packaged for sale,

, the

Supreme Court made no express statement limiting the mode-of-

operation rule to self-service businesses:

The Model [Jury] Charge correctly states the rule that when a substantial risk of injury is inherent in a business operator's method of doing business, the plaintiff is relieved of showing actual or constructive notice of the dangerous condition. The plaintiff is entitled to an inference of negligence, shifting the burden of production to the defendant, who may avoid liability if it shows that it did "all that a reasonably prudent man would do in the light of the risk of injury [the] operation entailed."

[Id. at 564-65 (quoting

).]

Given the well-recognized risks to the health and safety of both

patrons and workers posed by a greasy, slippery floor, 5 I see no

sound reason to impose the majority's limitation on the mode-of-

operation doctrine.

5 See, e.g., a recent study of fast food restaurants, which highlighted the magnitude of the risk presented by walking on a contaminated floor, finding it increased the rate of slipping by 14.6 times. Santosh K. Verma et al., Rushing, distraction, walking on contaminated floors and risk of slipping in limited-service restaurants: a case-crossing study, 68 Occupational & Envtl. Med., no 8, 551, 575-81 (2011) as reported in Liberty Mutual Research Institute for Safety, Slips and Falls in Restaurants: Reducing Worker Risk, 14 Scientific Update: From Research to Reality, no 1, 1, 6 (2011), http://www.libertymutualgroup.com.

12 A-2884-12T4 Further, the equitable considerations that underlie the

mode-of-operation cases apply to the present case and justify

shifting the burden to KFC. After plaintiff fell, the assistant

store manager chose not to kneel down to inspect the floor where

plaintiff fell; neither she, nor any other employee, wiped the

floor with a cloth or rag to see what may have caused

plaintiff's fall. Additionally, KFC failed to preserve the

restaurant log book in which the assistant manager documented

the incident.

"The customer is hardly in a position to know precisely

[what] was the neglect."

. "It

is just, therefore, to place 'the onus of producing evidence

upon the party who is possessed of superior knowledge or

opportunity for explanation of the causative circumstances.'"

(quoting Kahalili v. Rosecliff Realty, Inc.,

(1958)).

Because KFC's mode of operation allowed its workers in the

kitchen, including those workers who fry the chicken in cooking

oil in deep vat fryers and pressure cookers, to use the same

restrooms as restaurant patrons, 6 the burden was appropriately

6 I acknowledge the economic benefit for restaurant operators if they are able to have their workers use the same restrooms provided for patrons. Such "economic considerations, however, cannot supplant the bedrock safety obligations and duties of a

13 A-2884-12T4 shifted to KFC to prove it took "reasonable measures to guard

against injuries to customers." Craggan v. IKEA USA,

(App. Div. 2000)(quoting O'Shea, supra,

).

I conclude the facts before the jury raised legitimate

inferences that plaintiff's fall was caused by grease on the

floor related to defendants' mode of operation, where workers,

exposed to the oil and grease in the kitchen, were not provided

with a separate bathroom but were required to use the restrooms

provided for patrons. By its verdict, the jury concluded

defendants breached its duty to plaintiff to keep the premises

reasonably safe.

Because I conclude the record supports the decision of the

trial judge to give the mode-of-operation charge, and the jury

charge on the whole accurately stated the law applicable to the

contested evidence in this case, I would affirm the jury's

verdict. See Mogull v. CB Commercial Real Estate Group,

(2000).

retail proprietor to a customer." O'Shea v. K Mart Corp.,

(App. Div. 1997).

14 A-2884-12T4