I’ve been rather busy work-wise, but didn’t want to let this one slip through the cracks like so many other potential posts. Because how can you let a new theory of liability on a common fact pattern, apparently never tested before in New York, just slip away?
The fact pattern is this: A self-service store (supermarket, Wal-Mart, etc.) with refuse on the floor. Patron slips, falls and is injured on the refuse. A fairly typical type of personal injury case.
To hold the market accountable, we’ve long been taught that notice of that banana peel sitting there was needed to prove liability. This can be done either by showing that the store had actual notice of the debris (someone complained or an employee saw it), or that the store should have known it was there (constructive notice). Constructive notice might come up if the injured person points out that the banana peel was black, for instance, in trying to show it had been there for a long time. Because we’ve been taught that you can hold a store liable if it knew (or should have known) of the mess.
But wait! As per Lou and the Law, New York counsel may be overlooking a theory of liability that has been accepted in 20 states, yet there aren’t any citations in New York state courts for the attempt to use that theory. It isn’t even discussed, much less analyzed. Lou refers to the Mode of Operation Rule. According to Lou:
The rule provides that If a proprietor could reasonably anticipate a hazard could arise based on the manner in which his business regularly operates, a plaintiff does not have to prove actual or constructive notice of the hazard….
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; 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…
Lou, who defended cases for decades as a trial lawyer with Liberty Mutual, has much more at this link: When will New York adopt the Mode of Operation Rule?
It seems nearly impossible to create a self-service environment without some sort of injury risk.