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Third Circuit finds no nexus between retailer’s mode of operation and water on store floor

11/21/22

By: Edward Solensky Jr.

In Saunders v. Wal-Mart Stores Inc., No. 21-1941, 2022 WL 832050 (3d Cir. Mar. 21, 2022), the Third Circuit rejected a Plaintiff’s argument that the District Court erred in ruling that the mode of operation doctrine did not apply to the facts of her case. Specifically, Plaintiff attributed a puddle on the store’s floor to broken water bottles that were stacked high on crates in an aisle, and argued that this stacking created a dangerous condition that was foreseeable to Wal-Mart. The Third Circuit disagreed, holding nothing in the record suggested that stacking water bottles for self-service makes them likely to leak, so Plaintiff cannot show that the “mode-of-operation” rule applied.

Plaintiff, Annette Saunders, filed a negligence complaint seeking to recover monetary damages for injuries allegedly sustained after slipping and falling in a Wal-Mart store in Neptune, New Jersey. Saunders claimed that water was leaking from cases of water bottles on the floor near the back of the store. She testified that she saw a display of cases of plastic water bottles, some of which were broken, however she had no knowledge of: (1) who or what caused the bottles to break; (2) how long the water had been on the floor; and (3) whether any Wal-Mart employee had actual or constructive notice of the water in sufficient time to remove same. Wal-Mart disputed that any accident occurred.

Following fact discovery, Wal-Mart moved for summary judgment on the basis that Plaintiff could not establish that Defendant had actual or constructive notice of the alleged spill and could not establish that she was entitled to the benefit of the “mode of operation” rule. The District Court granted Wal-Mart’s Motion, holding that “[b]ecause Plaintiff’s injury was not a foreseeable consequence of the self-service model, she has not demonstrated that the mode of operation doctrine should apply; therefore, she was required to show the store had actual or constructive knowledge of the leak in order to defeat summary judgment.” Based on its review of the record, the District Court ruled that there was no evidence to suggest that Wal-Mart had actual or constructive notice of the dangerous condition.

On appeal, the Third Circuit affirmed the District Court’s decision. The Court dismissed Saunders’ argument that attributed the puddle to “broken water bottles” that were “stacked high on crates” in an aisle because she provided no evidence that this stacking “was likely to create a dangerous condition that was foreseeable” to Wal-Mart. The Court noted that nothing in the record suggested that stacking water bottles for self-service makes them likely to leak. The Court reasoned that, without corroborating evidence, no reasonable inference could be drawn that Wal-Mart’s self-service model caused the puddle, so Saunders cannot show that the “mode-of-operation” rule applied.

The Court of Appeals also found that Plaintiff failed to establish that Wal-Mart had notice of the spill, noting that Saunders pointed to no characteristics of the puddle suggesting that it was present long enough to establish constructive notice. The Court was unpersuaded by the fact that Saunders was in the store for an hour before she fell and the fact that she spent ten minutes on the ground before an employee came to her aid, stating neither “indicates how long the puddle was present prior to her fall.” In the Court’s words, “(t)he question of timing that matters is how long the dangerous condition itself was present, and without evidence of how fast water leaked from the broken bottles, a jury cannot reasonably infer how long the puddle existed based solely on the puddle’s size.”

This appellate decision is important for retail defendants who operate self-service businesses that require customers to independently handle the goods they seek to purchase. It affirms established case law that plaintiffs seeking to invoke the mode of operation doctrine must establish a nexus between the self-service component of a defendant’s business and a risk of injury in the area where an accident occurs.

For further information or inquiries please contact Edward Solensky Jr. at edward.solensky@fmglaw.com.