Premises Liability Updates

 NEW JERSEY

 In New Jersey, a premises liability plaintiff's burden can be initially much easier, because of a doctrine known as "Mode of Operations." This doctrine relieves the Plaintiff of the burden of showing that the retailer defendant had notice of the hazard, if because of the nature of the retailer's business, the property's condition, or a "demonstrable pattern of conduct or incidents," a dangerous condition is likely to occur. Under those circumstances, the burden of proof shifts to the retailer to show that it has taken prudent and reasonable steps to avoid the hazard. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 818 A.2d 314 (2003). The case is often applied to the "self-service" retailer, because shelved merchandise often becomes unstable or a spill occurs due to the carelessness of other customers. If the retailer does not have in place a reasonable means to detect these hazards, the "mode of operations" doctrine could apply. In New Jersey, then, a "self-service" retailer will need to demonstrate an excellent program of safety sweeps and other protective measures to rebut the presumption that the nature of its business creates a hazardous condition for customers.

PENNSYLVANIA

In retail premises liability matters, Pennsylvania adheres to the requirement that a Plaintiff show what actually caused the trip/slip and fall or falling merchandise incident. If a plaintiff posits two or more possible causes, or cannot be sure what caused the incident, a defendant should be successful in obtaining a pretrial judgment in its favor. DeBiase v. Hersheypark, 2007 WL 4095611 (M.D.Pa.). A plaintiff must also show notice, i.e., that the landowner had actual knowledge or constructive notice of the hazard. "Actual knowledge" requires, as its name implies, evidence that the retailer had specific information about the hazard. "Constructive notice" can be proven if the Plaintiff shows that the hazard was present for a long period of time, and that the retailer was lax about inspecting the premises for hazards. A retailer defendant can often obtain a favorable judgment if it can show a reasonable "safety sweep" program, and if the evidence indicates that the hazard is of a recent origin. Compare Kujawski v. Wal-Mart Stores, Inc., 2007 WL 2791838 (E.D.Pa.) and Read v. Sam's Club, 2005 WL 2346112 (E.D.Pa.) (no constructive notice of liquid spills) with Evans v. Wal-Mart Stores, Inc., 2007 WL 2688694 (M.D.Pa.) (jury question as to constructive notice of grapes). Finally, a merchant owes no obligation to warn a customer about open and obvious hazards, such as that presented by a blind employee whose cane presents a trip hazard, even if the average customer would be unaware that handicapped employees work at the store. Campisi v. Acme Markets, Inc., 915 A.2d 117, 2006 PA Super 368. Ultimately, premises liability is a very fact-intensive inquiry. Strong documentation and testimony from employees about safety sweeps, and detailed testimony from the Plaintiff or witnesses that characterizes the hazard as a fresh spill or recently caused by another customer, can go a long way toward a successful resolution of the case.