The Cassidy Law Firm Blog

Sunday, May 1, 2016

Plaintiff Gets New Trial in Costco Premises Liability Lawsuit

Must a retailer receive notice about a dangerous condition before it can be held liable in a slip and fall case?

In an appeal of a recent lawsuit against the retailer Costco, the plaintiff will get a new trial because the jury was not correctly instructed on the question of notice.

Retailers generally have an obligation to maintain their premises properly and may be held liable for injuries caused by unsafe conditions. In some cases, they must receive notice of a hazard before they can be held liable for failure to eliminate it. But in others no notice is needed. When a business's general "mode of operation" causes a hazard, however, a plaintiff may not be required to prove that the business was notified of the hazard.

Was Costco Responsible for the Plaintiff's Slip and Fall?

The plaintiff in the New Jersey case fell at Costco as he walked past a cheesecake vendor who was giving out free samples. Slipping on a white substance, the plaintiff dislocated his shoulder. When he got up, the substance was on his clothes, but he could not tell whether it came from the cheesecake vendor or elsewhere. The store quickly cleaned up the spill.

A Costco manager testified that floors were inspected every hour and that crews diligently mopped up wet spots. He also testified that there were many food stands giving away free food at the time of the accident.

Was Costco Liable if It Had No Notice of the Danger?

The plaintiff asked that the judge give the jury the so-called "mode of operation" instruction, set forth in New Jersey Model Civil Jury Charge 5.20F, because the defendant's manner of running the business created the dangerous condition. The judge refused, however, saying that Costco's self-service business model meant that the "mode of operation" charge wasn't applicable. Patrons, said the court, took free samples from around the store, and the slippery substance could have come from elsewhere. Costco, it held, needed to have had actual notice of a hazard before it could be held liable for an accident.

The Trial Court Erred in Not Giving the "Mode of Operation" Jury Instruction

The appellate court disagreed and sent the case back for a new trial. Jurors will now be instructed that, if Costco's mode of operation caused the accident, it can be held liable without notice of the spill. It is still up to jurors to decide whether the substance that caused the slip and fall came from the cheesecake vendor or elsewhere and whether the plaintiff or defense has the stronger case.

Slip and fall lawsuits raise factual and legal questions about notice, liability, causation, and numerous other issues. If you are involved in an accident, an expert in this area of litigation can advise you on whether you have a valid claim and how to proceed.


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