Prioleau v. KFC Inc. – “Mode of Operation” in Slip-and-Fall Lawsuits
Gregg Hollander | November 1, 2015 | Personal Injury
A Florida law enacted several years ago requires that victims injured in slip-and-fall accidents on a business property have to prove the business was aware of the dangerous condition and failed to take action to remedy it or alternately warn patrons. The statute is F.S. 768.0755.
In most slip-and-fall accidents, it can be very difficult to prove “actual notice,” which involves showing the business knew of that exact spill for an amount of time during which they should have taken action. The alternative is to prove the business had “constructive notice,” which is that the business should have been aware of the danger because it existed for an extended period of time or occurred with regularity and was therefore foreseeable. The latter is known as “mode of operation.” That is, the condition occurred regularly because of the company’s “mode of operation,” and thus it was reasonable the staff, exercising due diligence, would discover it.
A similar standard exists in New Jersey, where the New Jersey Supreme Court recently affirmed a judgment in favor of plaintiff in Prioleau v. KFC, Inc. In this slip-and-fall case, the mode of operation theory was asserted as proof of the restaurant’s constructive knowledge of the dangerous condition, which was a transitory foreign substance on the floor.
According to court records, plaintiff and her two adult children were on a trip from New Jersey to Delaware. It was very rainy that evening, and the trio decided to stop at a local fast-food restaurant for dinner. Plaintiff said she tracked water into the restaurant, but there were no mats on the floor. She walked to the counter to tell her son what she wanted to eat, and then walked to the restroom. As she approached, she slipped and fell, landing on her hands and buttocks. Later, she would testify the ground felt both wet and greasy. Her children said as they came to her aid, they too were slipping, as the floor felt both wet and greasy.
There was no evidence patron herself was carrying a drink or condiments or that other patrons were either.
The store manager testified that she did not conduct a thorough check of the floor when she arrived on shift. She did say kitchen staff cooked with grease, and it was possible that grease was tracked by their shoes to the restroom.
Plaintiff later sought treatment for lower back pain related to the incident. She undergoes physical therapy and takes pain medications, but has decided against surgery for now.
In her lawsuit, she alleged defendant restaurant failed to use reasonable care by not providing a safe place for plaintiff, an invitee, to traverse the property.
At a jury trial, jurors awarded plaintiff $250,000 in damages, but assigned her 49 percent fault, meaning her damage award was reduced to $139,000.
Defense appealed, but the state supreme court ultimately affirmed this verdict. In general, it was noted the mode of operation rule applies when a dangerous condition is likely to occur as a matter of probability due to the nature of the business, the condition of the property or a demonstrable pattern of conduct or incidents. Most of these cases focus on the self-service nature of a defendant’s business. In Florida, the Fifth District Court of Appeal affirmed its application to a case in which a slip-and-fall occurred when a nightclub patron slipped and fell on a spilled drink on the dance floor. The court ruled that because it was the nightclub’s policy to allow drinks on the dance floor, spills were a reasonably foreseeable outcome.
If you have been injured in Boca Raton, contact the Hollander Law Firm at (561) 347-7770 for a free and confidential consultation. There is no fee unless we win.
Prioleau v. KFC, Inc. , Sept. 28, 2015, New Jersey Supreme Court