This month’s article focuses on the history and application of the mode of operation rule in Arizona. Despite the allegations of some personal injury attorneys, the mode of operation rule does not apply to every slip and fall case and does not create a rule of absolute liability for business owners. As discussed below, the burden of proof remains with the Plaintiff, and there are multiple strategies to defending application of the rule in a premises liability case.
Arizona first adopted the mode of operation rule in 1966 in a case involving a grocery store customer who slipped on a piece of lettuce. In Rhodes v. El Rancho Markets, 4 Ariz. App. 183, 418 P.2d 613 (1966), the Arizona Court of Appeals took judicial notice of the fact that “in a self-service market operation . . . the customer is expected to handle and examine the produce displayed in the open bins.” Id. at 185, 418 P.2d at 615. Since, the risk of a customer slipping and falling was foreseeable by the grocer, the grocer had a duty to take “reasonable steps to obviate the danger.” Id.
Since Rhodes was decided, Arizona has expanded the mode of operation rule to cases involving almost all items dropped or spilled on the ground by other customers. The rule has been applied to cases involving lettuce, pizza, milk, grapes, soft drinks, water, and even liquids spilled by customers opening sealed bottles on display in the store. The rule is not limited in its application to the type of product as “the only real issue is whether or not [the business owner] could reasonably anticipate that [the item] would be spilled on a regular basis.” Chiara v. Fry's Food Stores, 152 Ariz. 398, 401, 733 P.2d 283, 286 (1987). However, the Arizona Supreme Court has recognized that the mode of operation rule “is of limited application” because “if the rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law.” Id.
For the mode of operation rule to apply, the Plaintiff bears the burden of proving unreasonably dangerous conditions regularly occurred, and the store failed to exercise reasonable care under the circumstances. The standard jury instruction states the following:
Even if you find that Defendant had no notice of the unreasonably dangerous condition that Plaintiff claims caused harm, Defendant was negligent if you find the following:
Defendant adopted a method of operation from which it could reasonably be anticipated that unreasonably dangerous conditions would regularly arise; and
Defendant failed to exercise reasonable care to prevent harm under those circumstances.
REVISED ARIZONA JURY INSTRUCTIONS (CIVIL) 6th, Premises Liability 1A.
One way to challenge the rule is to hold Plaintiff to his or her burden of proving “unreasonably dangerous conditions would regularly arise” prior to the accident. “Since people can and daily do sustain injuries from almost all conceivable conditions under a multitude of varying circumstances, and since the possessor of the premises is not an insurer of the safety of invitees, the line between liability and nonliability must be drawn at some point.” Berne v. Greyhound Parks, 104 Ariz. 38, 448 P.2d 388 (1968).
The first hurdle a Plaintiff faces is proving the condition was “unreasonably dangerous.” “Defective conditions are not necessarily dangerous conditions.” Id. at 41, 448 P.3d at 391. A “defective condition” is only a “dangerous condition” if it involved “an unreasonable risk of harm.” Id. As such, while a crack in the grandstands which allows spilled liquid to drip onto the floor below might be a defective condition, it is not an unreasonably dangerous condition unless there is evidence to prove spills regularly dripped to the floor below, creating an unreasonable risk of harm to other patrons. Berne v. Greyhound Parks, 104 Ariz. 38, 448 P.2d 388 (1968). In Berne, the Court refused to apply the mode of operation rule when the evidence only showed that spilled liquids dripped through cracks at wide and irregular intervals, and there was no evidence to prove that other customers had slipped on dripping liquids.
The Plaintiff must also prove the condition would “regularly arise” prior to their accident for the mode of operation rule to apply. “Regular” is defined as "customary, usual, or normal." Borota v. Univ. Med. Ctr., 176 Ariz. 394, 396, 861 P.2d 679, 681 (Ariz. App. 1993). If the evidence establishes spills do not occur very often, that would be “the opposite of the mode-of-operation rule” and “insufficient to establish that third-party interference was reasonably foreseeable so as to invoke that rule.” Id. at 396, 861 P.2d. at 681. For example, in Borata, the Arizona Court of Appeals held a hospital was entitled to summary judgment because the Plaintiff was unable to establish that spills regularly occurred in the hallway where she fell. However, the Arizona Supreme Court has upheld the application of the rule where testimony was elicited from employees that there were “lots of things” to clean up and “it’s not the cleanest place.” Chiara, 152 Ariz. at 401, 733 P.2d at 286. Conversely, the Arizona Court of Appeals affirmed summary judgment in favor of a drug store where the store manager only testified “things would end up on the floor” and would have to be cleaned up “from time to time.” Contreras v. Walgreens Drug Store #3837, 214 Ariz. 137, 140, 149 P.3d 761, 764 (Ariz. App. 2006). While the store manager admitted it was “typical” for “a couple of spills a week” to require cleaning, he also testified that spills were not “repetitive in nature” or “something that [he] would expect.” Id. Since there was no evidence the spilled liquid “reached the floor nor that those spills occurred in the area of the store accessible to customers,” the Plaintiff had not met his burden of proving that prior spills “regularly created a hazardous condition.” Id.
Even if there is enough evidence to prove unreasonably dangerous conditions regularly occurred, the Plaintiff still bears the burden of proving the store failed to exercise reasonable care to prevent harm under the circumstances. While this is the Plaintiff’s burden “a defendant involved in a jury trial will want to introduce any and all evidence indicating that it exercised reasonable care under the circumstances.” Chiara, 152 Ariz. at 402, 733 P.2d at 287. This may include testimony from a member of management establishing how employees are trained on the prevention of customer accidents, testimony from employees regarding their inspection and cleaning of the premises on the day of the accident, and copies of written policies and procedures. According to the Arizona Supreme Court, “If the business was exercising reasonable care under the circumstances, the business will prevail at trial.” Id. at 401, 733 P.2d at 286.
In all mode of operation cases, consideration should be given to identifying the unknown individual who created the condition as a non-party at fault. Arizona is a pure comparative fault state, and Defendants may identify non-parties at fault within 150 days of the filing of their answer. This procedure allows the jury to assess a percentage of fault upon the individual who negligently created the condition and failed to remedy the condition or notify the business of the condition in time to provide a remedy or warning. See, e.g., McKillip v. Smitty's Super Valu, 190 Ariz. 61, 65, 945 P.2d 372, 376 (Ariz. App. 1997)(holding it was proper for a jury to apportion 65% of the fault to the unknown customer who dropped wax paper on the floor even though “how the paper reached the floor, whether a person dropped the paper, and how long the paper rested on the floor [were] all unknown”).
The mode of operation rule is not the death knell in a premises liability case. Many Plaintiff’s attorneys fail to take the depositions of Defendant’s employees to establish unreasonably dangerous conditions regularly occurred prior to the accident. Defense counsel may also be able to elicit testimony from the Plaintiff that he or she regularly patronized the establishment and is unaware of prior spills or customer accidents on the premises. With the right testimony, and hopefully good video surveillance footage, a motion for summary judgment can be successful.
This article was written by Michael Kelley, a Partner at Thomas Rubin & Kelley PC. Mr. Kelley is an experienced trial lawyer and specializes in premises liability, automobile negligence, homeowner’s liability, insurance coverage, insurance bad faith, and appeals. Please feel free to contact Mr. Kelley should you need legal assistance on your Arizona cases. mkelley@trkfirm.com