Negligent Mode of Operation in Slip-and-Fall Cases

In Florida slip-and-fall cases, the negligent mode of operation rule was developed initially through common law, later codified in F.S. 768.0710(2), which described the “mode of operation” as a possible cause of action a property owner could face in negligence actions that involved slips and trips on transitory foreign substances on the floor. As the Florida Supreme Court ruled in the 2002 case of Markowitz v. Helen Homes of Kendall Corp., the negligent mode of operation theory centers on the mode of operation used by the property owner, which resulted in the creation of an unsafe condition.oil

However, that provision was later repealed in 2010 and replaced with F.S. 768.0755, which omitted the “mode of operation” language completely, which defendants have argued means that state courts don’t recognize it anymore. Specifically, they’ll cite the 2015 ruling in Woodman v. Bravo Brio Restaurant Group, decided by the U.S. District Court of for the Middle District of Florida, which granted a defense motion to strike a claim citing negligent mode of operation on the grounds it could not longer serve as a basis for proving premises liability. Still, the state supreme court hasn’t ruled on it as of yet, and plaintiffs continue to assert it as a cause of action in injury complaints, although there is generally no getting around F.S. 768.0755 and the requirement to prove defendant had actual or constructive knowledge of the alleged dangerous condition.

Other state courts continue to wrestle with this issue too. Recently in Rhode Island, the state high court weighed a case that involved a woman who slipped on oil and cucumber near a self-serve salad bar section in a grocery store, causing her to suffer serious personal injury. 

According to court records, plaintiff entered the store around 2 p.m. and upon leaving the meat department, took a few steps and slipped on the debris near the salad bar. She never saw a warning sign and testified there were no employees in the area and no one immediately came to her aid after she fell. The store told her there was no one on staff to help her with an incident report.

She was taken to a nearby hospital, where x-rays revealed no broken bones. There were however soft tissue injuries and numerous tears in her knee and bulging discs. Plaintiff sued for premises liability, seeking compensation for her injuries.

At trial, the manager was asked whether spills occurred often at the salad bar, to which he answered no. He did say however, there were occasional spills, but that no particular employee was assigned to monitor the area. However, deli employees could see the area and whether it needed to be cleaned, and a chef would come around every so often to see if it needed refilled. There were no protective materials or mats to absorb spills and there were no warnings cautioning customers about possible spills.

After all the evidence had been presented, defense moved for summary judgment, arguing that while it wasn’t in dispute that plaintiff fell on oil and cucumber from the salad bar, there was no evidence of actual or constructive notice to the store or anyone employed there, which would have determined whether the store had a reasonable amount of time to clean it up. Plaintiffs moved for judgment as a matter of law, arguing the store lacked safety policies and the mode of operation rendered a constant danger.

Trial judge rejected plaintiff’s motion, but reserved judgment on defense motion and the case went to the jury, which was instructed on the law, including the requirement to keep the area in reasonably safe condition for food and grocery shopping. The court did not advise jurors on the theory of negligent operation – but plaintiff didn’t object to that.

Jurors decided in favor of defendant.

Upon appeal, the Rhode Island Supreme Court affirmed, finding the trial court didn’t err in refusing plaintiff’s motion for a new trial and there was no mistake in the failure to instruct jurors on the mode of operation because the plaintiff never objected to it. The court declined to weigh the merit’s of plaintiff’s assertion that the mode of operation theory should be adopted in light of her circumstances.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Bates-Bridgmon v. Heong’s Market, Inc., Jan. 15, 2017, Rhode Island Supreme Court

More Blog Entries:

Wrongful Death Lawsuit Alleges Restaurant Negligent in Triple Murder, Jan. 14, 2017, Fort Lauderdale Injury Lawyer Blog