Packaging Matters: Table Grapes, Clamshell Containers, and the Mode of Operation Rule


Grapes have been around for 65 million years. But it’s only been since 6500 BC that humans have been growing them, and in the timeline of history, table grapes — the ones we buy in bunches to snack on — are an even more recent development. King Francis I had a particular fondness for grapes for dessert, which earned him the distinction of being the originator of table grapes. We’ll never know if the King of France bought his own produce, but it’s safe to say he didn’t buy table grapes packed in plastic “clamshell” containers.

Clamshell containers and table grapes were front and center in Throw against Sam’s Club, 2022 NJ LEXIS 242, 2022 WL 802807, a case that involved the implications of how a retailer packages grapes for sale. The plaintiff in the case, Aleice Jeter, filed a negligence lawsuit seeking to recover from injuries allegedly sustained after she slipped and fell on a grape in the driveway of Sam’s Club in Linden, New Jersey. Relying on the “mode of operation” rule, Jeter argued that she was relieved of her burden of establishing that Sam’s Club received actual or implied notice of the grape’s presence in its store. She argued that the store’s knowledge that customers routinely opened the shells to eat grapes and its practice of handing out grapes in bulk on certain occasions linked the unsafe condition to Sam’s method of selling grapes. Club. The store countered that the mode of operation rule was unenforceable because it only sold grapes in tabbed, interlocking clamshell crates that were additionally secured with tape. The case therefore rested on the applicability of the modus operandi rule.

The mode of operation is a rule created by the courts that relieves the plaintiff of the burden of proving that he had knowledge of a dangerous situation in circumstances where, in all likelihood, a dangerous situation is likely to arise due to the nature of the business, the condition of the property or any demonstrable behavior or incidents. The rule was first applied in the context of foods served in open containers or tubs. In 2003, the New Jersey Supreme Court in Nisivoccia v. glass gardens, 175 NJ 559, 561, 566 (2003), applied the rule that a plaintiff slipped and fell on loose grapes near supermarket checkouts. In this case, the store was packing the grapes in open, ventilated plastic bags that allowed for spills. By applying the operating mode rule, the Nisivoccia The court pointed out that the mode of operation of a supermarket “includes the necessary handling of the goods by the customer…the handling of the goods by an employee…and the characteristics of the goods themselves and the manner in which they are packaged.”

More recently, in Prioleau Fried Chicken c. Kentucky, 223 NJ 245 (2015), the court reaffirmed that the rule is limited to self-service, where customers independently handle goods without the assistance of employees. the Prioleau The court clarified that the rule applies wherever “there is a connection between the self-service components of the defendant’s business and a risk of injury in the area where the accident occurred”, and if the injury results from employee manipulation, customer negligence, or the “inherent qualities” of the merchandise itself.

In Discard, Judge James Hely held a pre-trial R.104 hearing to decide Sam’s Club’s motion in limine to exclude the mode of operation from the jury instructions. Sam’s Club produced assistant manager Brian Crumm, who testified that the store sold grapes only in tabbed, nestable plastic clamshell containers with a strip of duct tape sealing the containers closed. Crumm further stated that the store disapproves of customers opening the containers to sample the grapes and considers such opened containers to be “tampered with.”

At the end of Crumm’s testimony, Judge Hely ruled that the modus operandi rule did not apply. He found that the customer’s intermediate acts of first removing the tape and then unlocking the locking tabs holding the clamshell container closed together constituted an intermediate negligent act by a customer, which served to circumvent the mode of operation from the retailer. He further reasoned that these intermediate acts also severed any causal connection between the company’s self-service operations and the spilled grape on which Jeter slipped and fell. Finally, Judge Hely declined to apply the modus operandi rule based solely on Jeter’s testimony that Sam’s Club had, on an unspecified date (not the date of Jeter’s fall), previously distributed free samples of grapes in small cups.

Hely J. then found that the plaintiff had failed to establish that Sam’s Club had received actual or implied notice of the grape she had slipped on. As to the actual opinion, the plaintiff admitted that she had no evidence of Sam’s Club’s actual opinion regarding the grape. As to the implied notice, the plaintiff conceded that the factual record was devoid of any data as to how long the grapes had been on the ground. The plaintiff then attempted to shift the charge to Sam’s Club to prove how often the store conducted floor inspections. Judge Hely found that Sam’s Club had had no real or implied notice of the dangerous condition at law, and that no genuine issue of material fact remained for a jury to decide at trial.

On plaintiff’s appeal, the Appellate Division accepted the trial court’s decision to dismiss the case on notice grounds. The court noted that in order to invoke the mode of operation doctrine, the plaintiff must prove that the unsafe condition arose from the self-service operation of the business. According to the court, ”

After determining that the trial court correctly applied the mode of operation doctrine, the Appeals Division then assessed the plaintiff’s claim under traditional principles of negligence. According to the court, the plaintiff’s attorney acknowledged that the record was devoid of any evidence to establish that Sam’s Club did indeed have notice of grapes in the aisle of the store where the plaintiff fell. Additionally, the court noted that the record was devoid of any evidence that the defendant had an implied notice of grapes on the floor anywhere in the store at any time. The plaintiff presented no evidence that the defendant’s employees knew or should have known before the plaintiff’s fall that there were grapes on the floor of the main aisle. Additionally, there was no evidence of how long the grapes were there, such as eyewitnesses or age characteristics of the grapes, to indicate how long the defendant had to discover and remedy the situation.

On Jeter’s appeal to the New Jersey Supreme Court, a majority found that the mode of operation rule did not apply to the sale of grapes in closed clamshell containers. The court noted that Sam’s Club is a self-service business and that there was a geographic proximity between the plaintiff’s drop and the self-service sale of containers of grapes. Nonetheless, the court found that Sam’s Club only allowed the self-service sale of sealed, pre-packaged containers of grapes on the display. The court found it persuasive that Sam’s Club chose not to sell grapes in open, ventilated plastic bags such as those that created a foreseeable risk of spillage into Nisivoccia. The court further found no connection between the plaintiff’s fall on the grapes and the self-service sale of containers of grapes by Sam’s Club. The court was not persuaded by the argument that Sam’s Club knew that its customers occasionally opened the containers of grapes in the store because the clamshell packaging itself was secure and customers were not allowed in. to open the containers.

This decision is significant for the defendant retailers who operate self-service businesses that require customers to handle the goods they are looking to purchase. He asserts that plaintiffs seeking to invoke the mode of operation doctrine must establish: (1) a connection between the self-service component of a defendant’s business and a risk of injury in the area where an accident occurs ; and (2) that the self-service sale of a product creates a reasonably foreseeable risk that the product will fall to the floor during the ordinary processing of the customer.

Edward Solensky Jr. argued the appeal on behalf of Sam’s Club before the New Jersey Appellate Division. He is currently a partner in the Newark office of Freeman Mathis & Gary, LLP, where he focuses his litigation practice in the areas of premises liability, transportation defense, and insurance and coverage matters.


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