Richard Walker v. Costco Wholesale Warehouse
136 A.3d 436
| N.J. Super. Ct. App. Div. | 2016Background
- Richard Walker slipped in a Costco store after passing a vendor table offering free cheesecake samples; he described slipping on a white, "yogurt-like" substance and dislocated his shoulder.
- The sample cups were given out by vendor demonstrators who routinely allow customers to carry samples through the store; demonstrators were expected to clean around their displays.
- Store employees testified to hourly floor safety checks (last recorded at 5:52 p.m. that day) and denied seeing any spill where Walker fell; a witness overheard an employee say the area had been cleaned after the fall.
- Walker sought a jury instruction based on the "mode-of-operation" theory that relieves plaintiffs of proving notice when a business’s self-service method foreseeably creates floor hazards; the trial court refused the instruction.
- The jury returned a defense verdict on negligence; Walker appealed the refusal to charge mode-of-operation and the Appellate Division vacated and ordered a new trial limited to the mode-of-operation claim (ordinary negligence claim precluded on remand).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a mode-of-operation jury charge was warranted | Walker argued Costco’s practice of offering free samples is a self-service mode that foreseeably creates floor debris and thus a mode-of-operation instruction was appropriate | Costco argued no sufficient nexus existed between the cheesecake samples and the substance Walker slipped on, and that vendor activity did not amount to the self-service conduct requiring the charge | Court held that a mode-of-operation charge should have been given because there was a reasonable factual basis to infer the substance came from the sample stand; omission was prejudicial and requires new trial on that theory |
| Whether plaintiff must prove actual or constructive notice under mode-of-operation theory | Walker argued mode-of-operation obviates need to prove notice if jury finds nexus and store failed reasonable precautions | Costco argued notice remains required absent a clear self-service nexus and that its maintenance practices rebut liability | Court explained mode-of-operation can relieve notice requirement if jury finds the substance came from the free samples and defendant failed to exercise reasonable care; defendant can rebut by showing reasonable maintenance |
| Adequacy of evidence linking the spill to vendor samples | Walker relied on his description of a white, yogurt-like substance, store layout diagram, and hearsay that area was cleaned | Costco emphasized plaintiff’s inability to precisely identify the substance, testimony that vendors left by ~5–6 p.m., and absence of employee observation of a spill | Court found the evidence provided a sufficient, reasonable factual basis for jurors to decide nexus; credibility and weight are for the jury |
| Scope of retrial after instruction error | Walker sought retrial on liability generally | Costco opposed or sought broader relief including impleader of demonstrators | Court limited retrial to the mode-of-operation claim only (ordinary negligence claim previously tried is conclusively decided); left procedural issues like impleader to trial court |
Key Cases Cited
- Wollerman v. Grand Union Stores, 47 N.J. 426 (1966) (established mode-of-operation principle for open-bin self-service produce leading to retailer vigilance duty)
- Bozza v. Vornado, 42 N.J. 355 (1964) (applied mode-of-operation to cafeteria-style service permitting patrons to carry food)
- Nisivoccia v. Glass Gardens, 175 N.J. 559 (2003) (applied mode-of-operation where customer handling of produce and checkout practices made spills foreseeable)
- Prioleau v. Kentucky Fried Chicken, 223 N.J. 245 (2015) (clarified that self-service means customers independently handle merchandise, and mode-of-operation inapplicable absent such self-service nexus)
- Ryder v. Ocean Cty. Mall, 340 N.J. Super. 504 (App. Div. 2001) (treated mall where patrons carried food as functional equivalent of cafeteria for mode-of-operation purposes)
- Troupe v. Burlington Coat Factory, 443 N.J. Super. 596 (App. Div. 2016) (rejected mode-of-operation where spilled item had no nexus to store’s goods or services)