Retail and Hospitality self- service grocery stores and found that the rationale of Sheehan “logically extends to a self- service, fast food restaurant.” Marcione v. Jan Co., Inc d/b/a Burger King, C.A., 2010 WL 2697595 (D. R.I. 2010). So all modernday outlets that invite customers into their premises need to look out for potentially hazardous conditions that arise from the way in which they conduct their business. Focus a summary judgment argument on the plaintiff’s failure to establish that a specific method of operation gave rise to a foreseeable risk. Practical Considerations Given the court trend adopting mode of operation approaches, retailers and the attorneys who represent them will want to adopt particular operational procedures. <strong>The</strong>se procedures will help a defense attorney maintain a strong defense if a plaintiff sues a retailer under a mode of operation theory. A defense attorney can also buttress a defense by adopting specific litigation strategies. 50 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>February</strong> <strong>2012</strong> Retail Operation Procedures In contrast to defending a standard premises liability action, defending a case against a retail establishment sued under a “mode of operation” theory, regardless of its incarnation, will likely fail if the defense attorney cannot produce evidence to rebut the plaintiff’s inference of negligence. A retail establishment cannot completely prevent customers from slipping and falling. However, if a retailer has proper procedures in place, an attorney may maintain a strong defense for that retailer. We recommend that retail establishments create and maintain thorough operations procedures, including maintenance logs and reporting requirements. Ensuring compliance with these procedures is paramount as failing to follow the procedures will further the theory that the mode of operation required constant oversight to prevent hazardous conditions from arising. Despite the double- edged sword that increased procedural documentation creates, the modified premises liability approach for self- service retailers should alert attentive counsel to its necessity. <strong>The</strong>se procedures and documentation standards should particularly identify areas that courts would characterize as falling within a “zone of risk,” such as salad bars, condiment areas, soda fountains, or any other area where a consumer has “hands-on” access to a product. Thoroughly documenting procedures and making sure that employees maintain them will go far to rebut a “mode of operation” claim and force a plaintiff’s attorney to establish liability through more traditional means. Litigation After conducting depositions, defense counsel for retailers often file motions for summary judgments in situations involving falls, arguing that the plaintiffs didn’t present evidence of actual or constructive notice. If a jurisdiction might apply the “mode of operation” rule or another similar standard, counsel also need to argue in a motion requesting a summary judgment that the rule doesn’t apply to the facts at hand. In some situations, a defense attorney can argue that the hazardous condition and the self- service mode of operation aren’t related. See Carlyle v. Safeway Stores, Inc., 78 Wash. App. 272, 276–277, 896 P.2d 750 (Wash. Ct. App. 1995). In Carlyle, the plaintiff slipped on a spot of shampoo while in the coffee section of the store. <strong>The</strong> shampoo was stocked several aisles away from where the plaintiff fell. <strong>The</strong> court held that since customers do not regularly handle shampoo in the area where the plaintiff fell, it was not reasonably foreseeable that a customer would slip on shampoo. Id. at 277. In other cases, a defense attorney may more appropriately focus a summary judgment argument on the plaintiff’s failure to establish that a specific method of operation gave rise to a foreseeable risk. In Fisher, the court noted that several court decisions “related the hazardous condition to the particular method of operation at issue, rather than attributing it solely to the general self- service nature of the business establishment.” Fisher, 298 Conn. at 431 (citing Jasko v. F.W. Woolworth Co., 177 Colo. at 420, 494 P.2d at 839 (“defendant’s method of selling pizza” created dangerous condition)); Gump v. Wal-Mart Stores, Inc., 93 Hawai’i at 418, 5 P.3d at 407 (specifically limiting application of the rule to circumstances of the case, when “a commercial establishment, because of its mode of operation, has knowingly allowed the consumption of ready- to- eat food within its general shopping area”); McDonald v. Safeway Stores, Inc., 109 Idaho at 307, 707 P.2d 416 (upholding the trial court’s denial of a summary judgment to the defendant on reasoning that “[t]he mode of operation of the ice cream demo on a very busy Good Friday, combined with the abnormally large crowds and other demos, in and of itself could constitute an act of negligence”); Jackson v. K-Mart Corp., 251 Kan. at 702, 710–11, 840 P.2d 463 (involving these questions for the jury on remand: whether dangerous condition due to the defendant’s allowing customers to carry food and drink onto the shopping floor was reasonably foreseeable and, if so, whether the defendant had failed to exercise reasonable care); Dumont v. Shaw’s Supermarkets, Inc., 664 A.2d at 848 **931 (holding the “mode of operation” rule potentially applicable because the defendant knew “that items with similar characteristics to the chocolate- covered peanuts created an increased hazard to customers”); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 251, 849 P.2d 320 (Nev. 1983) (noting evidence of “virtually continual debris on the produce department floor”); Nisivoccia v. Glass Gardens, Inc., 175 N.J. at 565, 818 A.2d 314 (finding the method of packaging grapes made it “foreseeable… that loose grapes would fall to the ground… creating a dangerous condition”); Wollerman v. Grand Union Stores, Inc., 47 N.J. at 429, 221 A.2d 513 (“When greens are sold from open bins on a self- service basis, there is the likelihood that some will fall or be dropped to the floor. 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”); Mahoney v. J.C. Penney Co., 71 N.M. at 260, 377 P.2d 663 (observing that the defendant “knew the propen- Premises, continued on page 66
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