## Facts

- Katherine Nisivoccia slipped and fell on loose grapes while approaching the checkout lanes of a supermarket.
- She fell about three feet from the entrance to a checkout aisle after stepping on a grape; she saw at least five additional grapes within a three-foot diameter.
- The store displayed grapes for customer self-service in open-top, vented plastic bags that permitted grapes to spill out.
- A store assistant manager acknowledged that grapes sometimes fell to the floor near the produce area and the checkout aisle.
- Nisivoccia reported the incident to a checkout employee and the store manager.
- There was no proof of how the grapes got on the floor or how long they had been there.

## Issues

1. Whether the mode-of-operation doctrine applied when a customer slipped on grapes near checkout lanes, given the store’s self-service display of grapes in spill-prone open-top, vented bags.
2. If the doctrine applied, whether the plaintiff was entitled to an inference of negligence relieving her of proving the store’s actual or constructive notice of the grapes.

## Decision

- The Supreme Court of New Jersey reversed the Appellate Division’s affirmance of a directed verdict for the supermarket and remanded.
- The Court held that the store’s method of selling grapes in open-top, vented bags in a self-service setting created a foreseeable, recurring risk that grapes would fall and create a hazard.
- The Court held that the risk extended beyond the produce display to the checkout area because customers would carry grapes to checkout and grapes could fall or roll there.
- The Court ruled that the plaintiff was entitled to a mode-of-operation inference of negligence, shifting the burden of production to the defendant to show reasonable protective measures.
- Because the inference applied, the case should not have been resolved by directed verdict for lack of proof of notice.

## Legal Principles

- In premises-liability cases, a plaintiff ordinarily must prove the defendant had actual or constructive notice of the specific dangerous condition.
- Under the mode-of-operation doctrine, when a substantial risk of injury is inherent in the defendant’s method of doing business, the plaintiff need not prove actual or constructive notice.
- When the doctrine applies, the plaintiff is entitled to an inference of negligence; the defendant bears the burden of production to present evidence of prudent, reasonable steps (such as inspection and cleanup practices) to prevent or address the hazard.
- The doctrine is limited to settings where the business practice itself makes the hazard reasonably likely; it does not apply to every self-service accident.
- The relevant “zone of risk” includes areas where the hazardous condition is a foreseeable result of customer handling under the business method, including along the path from display to purchase.

## Conclusion

The court held that a supermarket’s self-service sale of grapes in spill-prone open-top, vented bags created an inherent, foreseeable risk that grapes would end up on the floor near checkout, entitling the plaintiff to an inference of negligence without proving notice and requiring a trial rather than a directed defense verdict.


Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 818 A.2d 314 (N.J. 2003)