NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2493-14T2

RICHARD WALKER and KATHLEEN

WALKER, his wife,

Plaintiffs-Appellants,

v.

COSTCO WHOLESALE WAREHOUSE,

Individually and d/b/a COSTCO

OF OCEAN TOWNSHIP,1

Defendant-Respondent.

____________________________________

Argued March 14, 2016 – Decided

Before Judges Sabatino, O'Connor and Suter.

On appeal from the Superior Court of New 

Jersey, Law Division, Monmouth County, 

Docket No. L-2244-12.

Rui O. Santos argued the cause for 

appellants (Shebell & Shebell, LLC, 

attorneys; Thomas F. Shebell, III, of 

counsel; John H. Sanders, II, of counsel and 

on the briefs).

Robert A. Ballou, Jr., argued the cause for 

respondent (Garvey Ballou, attorneys; Mr. 

Ballou, of counsel and on the briefs).

 

1 Defendant Costco Wholesale Corp. was improperly pleaded as 

Costco Wholesale Warehouse, individually and doing business as 

Costco of Ocean Township ("Costco").

APPROVED FOR PUBLICATION

April 1, 2016

APPELLATE DIVISION

April 1, 2016
2 A-2493-14T2

The opinion of the court was delivered by

SABATINO, P.J.A.D.

In this slip-and-fall case, plaintiff appeals a judgment 

for the defendant wholesale store entered after the trial court 

declined his request to instruct the jury with a mode-ofoperation liability charge. For the reasons that follow, we 

vacate the judgment and order a new trial at which the requested 

jury charge shall be given. As part of that charge, the court 

shall ask the jury to make a predicate factual determination of 

whether the substance on which plaintiff slipped came from a 

food sample offered to customers at a stand within the store. 

I.

Although some of the pertinent facts are disputed, the case 

is uncomplicated and it arises from a rather commonplace 

situation. At approximately 6:00 p.m. on Friday, October 7, 

2011, plaintiff2 Richard Walker went shopping with an 

acquaintance in a warehouse store in Ocean Township. The store 

is owned or operated by defendant Costco Wholesale Corp. 

("Costco"). Plaintiff and his acquaintance were purchasing 

items for an upcoming breakfast fundraiser.

 

2 We refer to Richard Walker as "plaintiff" even though the 

complaint names his wife Kathleen as a co-plaintiff on her per 

quod claim.
3 A-2493-14T2

According to plaintiff's trial testimony, while he was in 

the course of shopping he passed a small table on which a vendor 

was offering what appeared to be free samples of cheesecake. 

The cheesecake samples were contained in small paper cups. 

Plaintiff walked past the display stand, apparently without 

taking a sample, and proceeded toward an area looking for 

packages of bacon. He was not pushing a shopping cart, which he 

had left with his acquaintance. He was wearing sneakers at the 

time. 

Plaintiff testified that, as he turned a corner, he slipped 

on a substance on the floor. Plaintiff initially perceived that 

the substance had "a white appearance like a yogurt-based 

product." As he fell to the floor, plaintiff noticed that the 

side of his jogging pants were "wet" and "smeared" from the 

substance, although he "couldn't tell [the jury] exactly what it 

was." 

Plaintiff did not estimate in feet the distance from the 

spot where he fell to the cheesecake stand. He did indicate on 

a diagram admitted into evidence that the stand was in the 

diagram's upper right area and that his fall occurred in the 

center right area, referred to as the store's "D-19" section.

As he fell, plaintiff grabbed the handle of a nearby cart.

He felt his right shoulder pulling out of its socket, which he 
4 A-2493-14T2

attempted to put back into position with his other arm. He was 

later diagnosed with an anterior dislocation of his right

shoulder, which he contended was caused by the fall. 

The person who accompanied plaintiff to the Costco store 

that day was not with him the moment when he fell. She 

therefore did not observe the accident. Upon discovering that 

plaintiff had fallen, the acquaintance went over to the store's 

food court and requested a bag of ice for plaintiff. The ice 

bag was supplied and placed on his ailing shoulder. The 

acquaintance did not inspect the area of the floor where 

plaintiff fell. She was not asked during her trial testimony 

whether she recalled seeing a table with free cheesecake 

samples.

Defendant presented testimony from several witnesses, 

including an "administration manager" of the store. He

testified that he encountered plaintiff at the accident location

and that plaintiff told him that he fell on a "liquid." The 

manager observed no liquid on the floor while he was helping 

plaintiff. However, plaintiff's acquaintance testified, without 

objection, that another unidentified employee had stated in her 

presence that he had "cleaned up that area" after plaintiff's 

fall. See N.J.R.E. 803(b)(4) (delineating the hearsay exception 

for a statement by an opposing party's agent or employee 
5 A-2493-14T2

concerning a matter within the scope of that declarant's agency 

or employment, made during the existence of the relationship).

The administration manager explained that the company's 

maintenance policies require employees to walk the store on an 

hourly basis and inspect for trash and spills on the floors. 

While performing such hourly safety walks, the employees use a 

maintenance wagon equipped with a broom, mop and cat litter to 

soak up spills. According to the store's "floor walk sheet" for 

the day of the accident, the last floor inspection before 

plaintiff's fall was completed at 5:52 p.m. Several other store 

employees testified for the defense, and none of them observed 

any spills or substances on the floor in the area where 

plaintiff fell.

The defense witnesses confirmed that Costco typically has 

vendors giving out free food samples at various locations 

throughout the store. According to the store's "hard line 

manager," the stands are usually staffed by demonstrators 

between the hours of 10:30 or 11:00 a.m. to about 5:00 or 6:00 

p.m.3 The demonstrators are supplied with a mobile "caddy,"

brooms, dust mops, paper towels, and cleaning supplies. They 

 

3 Another defense witness, the assistant general manager, 

testified that the demonstrators would have been "off the floor 

for the most part by 5[:00], 5:30 on that day."
6 A-2493-14T2

are expected to be responsible for maintaining the areas around 

their displays. 

One defense witness who performs safety walks at the store

described the offering of samples as a "common" practice 

"throughout the store." He stated that the samples are provided 

in "bite size pieces," and that "most of the time [customers] 

just pop it in their mouth." He acknowledged that sometimes 

customers, particularly children, may drop the food on the 

floor, but that the demonstrators typically "make sure that they 

pick[] up anything that fell."

Approximately eight to fifteen kinds of free food samples 

are typically given out on the sales floor at this Costco store. 

The assistant general manager acknowledged that Costco generates 

revenues from the sales of products that some customers buy 

after trying the vendors' samples. He also acknowledged that 

there are no restrictions on customers walking around the store 

with samples they may take from the display stands. 

Plaintiff contended at trial that Costco was negligent in 

allowing a slippery substance to create a dangerous condition on 

the floor, which could cause an injury to the store's business 

invitees. He argued that the store's maintenance practices were 

inadequate and unreasonable, and that the store had at least 
7 A-2493-14T2

constructive notice of the slippery condition that caused him to 

lose his footing.

As an alternative to this theory of ordinary negligence, 

plaintiff sought to argue to the jury that the store had created 

a hazardous condition by its "mode of operation" in giving out 

free food samples to customers. Under this alternative theory, 

plaintiff sought to be relieved of his burden of proving actual 

or constructive notice of the presence of the slippery substance 

on which he allegedly fell. Plaintiff specifically requested in 

this regard that the court issue Model Civil Jury Charge 

5.20F(11) to the jurors. That model instruction reads as 

follows, in two alternative versions:4

11. Notice Not Required When Mode of 

Operation Creates Danger

A proprietor of business premises has 

the duty to provide a reasonably safe place 

for his/her customers. If you find that the 

premises were in a hazardous condition, 

whether caused by defendant's employees or 

by others, such as customers, and if you 

find that said hazardous condition was 

likely to result from the particular manner 

in which defendant's business was conducted, 

and if you find that defendant failed to 

take reasonable measures to prevent the 

hazardous condition from arising or failed 

to take reasonable measures to discover and 

correct such hazardous condition, then 

 

4 Plaintiff did not specify at the charge conference which 

alternative he wanted the court to charge. In any event, the 

variations in the wording do not affect our analysis.
8 A-2493-14T2

defendant is liable to plaintiff. In these 

circumstances defendant would be liable even 

if defendant and his/her employees did not 

have actual or constructive knowledge of the 

particular unsafe condition, which cause[d]

the accident and injury.

[Alternate Charge]

A proprietor of business premises has 

the duty to provide a reasonably safe place 

for his/her customers. If you find that a 

hazardous condition was likely to arise from 

the particular manner in which defendant's 

business was conducted and that defendant's 

employees probably were responsible either 

in creating such hazardous condition or 

permitting it to arise or to continue, 

defendant is liable to plaintiff if 

defendant failed to exercise reasonable care 

to prevent such hazardous condition from 

arising or failed to exercise reasonable 

care to discover and correct such hazardous 

condition. In these circumstances defendant 

would be liable even if defendant and 

his/her employees did not have actual or 

constructive knowledge of the particular 

unsafe condition, which caused the accident 

and injury.

[Where Appropriate Add:]

If you find that defendant did exercise 

reasonable care in . . . light of the risk 

of injury reasonably to be foreseen from the 

particular manner in which defendant 

conducted his/her business, then defendant 

would not be liable to plaintiff unless you 

find (a) that the hazardous condition was 

actually caused or created by defendant's 

employees or (b) that defendant had actual 

or constructive notice of the hazardous 

condition for sufficient time to have 

corrected it and failed to do so.
9 A-2493-14T2

[Model Jury Charges (Civil), 5.20F(11), 

"Notice Not Required When Mode of Operation 

Creates Danger" (1970).]

Defendant opposed the issuance of a mode-of-operation 

charge, contending that the factual context here does not 

warrant such a jury instruction. Among other things, defendant 

has argued that plaintiff's recollection of slipping on a white 

"yogurt-based" product lacks a sufficient nexus to the 

cheesecake samples. Moreover, the defense has contended that 

the activity of providing such samples does not comport with the 

kinds of "self-service" retail activities that have supported a 

mode-of-operation charge under the applicable case law.

The court ruled at the charge conference that it would not 

issue a mode-of-operation instruction. The court found it 

significant that plaintiff had testified that he was unsure of 

what he fell on, having only described it as a "white yogurtlike substance."5 The court recognized that the store permits 

customers to walk through the sales area with food and drink, 

but recalled no testimony that would "match up" the free items

provided that day with the substance on the floor that caused 

plaintiff to slip. 

 

5 We discern no meaningful difference between the court's use of 

the term "yogurt-like" and plaintiff's phrasing as "yogurtbased."
10 A-2493-14T2

Accordingly, the court instructed the jurors in the ensuing 

charge on traditional principles of premises liability, 

negligence, and causation. The negligence portion of the charge 

included plaintiff's obligation to prove defendant's actual or 

constructive notice of a dangerous condition. See Model Jury 

Charges (Civil), 5.20F(8), "Notice of Particular Danger as 

Condition of Liability" (2014).

The jury rendered a verdict for defendant, finding on the 

first question listed on the verdict form that plaintiff had 

failed to prove that defendant was negligent on the date of his 

accident. This form did not include a separate interrogatory 

asking whether plaintiff had proven the subsidiary element of 

actual or constructive notice. Because of this, we cannot tell 

from the verdict form whether the jurors voted in favor of

defendant on the negligence question because of a failure by 

plaintiff to prove the element of notice or because it found 

that Costco's maintenance practices were reasonable, or for both 

reasons or some other reason or reasons.

Plaintiff moved for a new trial, reiterating his argument –

this time with briefing – that the jurors should have been 

afforded a chance to evaluate whether defendant was liable under 

a mode-of-operation theory. Again, the trial court rejected 

plaintiff's argument, emphasizing its view that plaintiff had 
11 A-2493-14T2

not sufficiently shown the required nexus between his accident 

and Costco's method of doing business in using food vendors to 

distribute free food samples. 

The court faulted plaintiff for being "unable to decisively 

identify the substance that he . . . slipped on[.]" The court 

noted that "no other evidence was introduced to show what the 

substance was or where it might [have] come from other than the 

suggestion that there was a cheesecake sample display nearby." 

As a matter of timing, the court further alluded to its 

recollection of the evidence that "vendors are all required to 

be . . . off the sales floor by 4:30 [p.m.] and this accident 

happened well after 6 o'clock [p.m.]" Lastly, the court found 

it significant that "the item that the plaintiff claimed was a 

yogurt-like substance" was alleged to be on the floor "in an 

area where there were completely other items being sold, i.e. 

fish and frozen goods or cold goods," thus reflecting a lack of 

nexus between Costco's business operations and plaintiff's harm. 

II.

On appeal, plaintiff contends that the trial court erred in 

rejecting his request for a mode-of-operation charge. 

Affording, as we must, all favorable reasonable inferences to 

plaintiff from the factual record, and with the guidance of 

applicable case law, including the Supreme Court's recent 
12 A-2493-14T2

opinion in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J.

245 (2015), and other case law, we agree with plaintiff that a 

mode-of-operation charge was called for in this case. Such a 

charge is legally warranted here, provided that it include a 

specific instruction to the jurors to determine, as a factual

predicate, whether the substance on which plaintiff slipped came 

from a free food sample offered to customers by one of the 

demonstrators.

A.

"It is fundamental that '[a]ppropriate and proper charges 

to a jury are essential to a fair trial.'" Velazquez v. 

Portadin, 163 N.J. 677, 688 (2000) (alteration in original)

(quoting State v. Green, 86 N.J. 281, 287 (1981)); see also

Washington v. Perez, 219 N.J. 338, 350-51 (2014) (noting that 

"[o]ur law has long recognized the critical importance of 

accurate and precise instructions to the jury"). "A charge is a 

road map to guide the jury, and without an appropriate charge a 

jury can take a wrong turn in its deliberations[.]" Das v. 

Thani, 171 N.J. 518, 527 (2002) (quoting State v. Martin, 119 

N.J. 2, 15 (1990)).

Our task in this appeal is to determine whether the trial 

court erred in declining to charge the jury on mode-of-operation 

principles as plaintiff had requested, and, if so, whether that 
13 A-2493-14T2

charging error "may have affected the trial's result." 

Washington, supra, 219 N.J. at 351. For the reasons that 

follow, we are persuaded that the charge should have been given 

in this case and that its omission was clearly capable of 

affecting the verdict on liability. R. 2:10-2 (recognizing the 

appellate court's authority to grant a new trial for errors 

"clearly capable" of producing an unjust result).

In civil matters, the trial court should give an 

instruction that appropriately guides the jury on the legal 

basis of a plaintiff's claim or a defendant's affirmative 

defense, so long as there is a reasonable factual basis in the 

evidence to support that claim or defense. See, e.g., Baglini 

v. Lauletta, 338 N.J. Super. 282, 305-06 (App. Div.) (ruling 

that the defendant would be entitled to an apportionment jury 

charge on remand in a negligence case provided there is a 

"rational basis for the jury to conclude that . . . fault . . . 

can be apportioned"), certif. denied, 169 N.J. 607 (2001); see 

also Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 565-66 

(2003) (holding that the plaintiff was entitled to a mode-ofoperation instruction because spillage of produce was a 

foreseeable risk and the reasonableness of the defendant's 

exercise of care was for the jury to decide). 
14 A-2493-14T2

The trial court must defer to the jurors as the ultimate 

fact-finders in deciding whether the evidence presented in 

support of a claim or a defense is credible, provided that such 

a reasonable basis exists to believe it. The court's 

instructions must "plainly spell out how the jury should apply 

the legal principles to the facts as it may find them[.]" 

Velazquez, supra, 163 N.J. at 688 (emphasis added); see also Sun 

Coast Merchandise Corp. v. Myron Corp., 393 N.J. Super. 55, 82-

83 (App. Div. 2007) (quoting same), certif. denied, 194 N.J. 270 

(2008). 

In essence, the court's function in deciding whether to 

provide a factually-grounded liability instruction is akin to 

its role in deciding whether to grant a motion for summary 

judgment or for a directed verdict. The requested instruction 

generally should be given, as long as there is a reasonable 

basis in the evidence to support the predicate factual 

contention that can trigger the charge, in light of the proofs 

and all reasonable inferences that may be drawn from those 

proofs. Cf. R. 4:46-2 (delineating the well-established summary 

judgment standard); Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 523 (1995) (same); Frugis v. Bracigliano, 177 N.J.

250, 269-70 (2003) (noting that the standard for granting a 

directed verdict equates with the standard for granting summary 
15 A-2493-14T2

judgment). If reasonable minds might differ on the strength of 

the evidence, the court must "ensure that any legitimate dispute 

of material fact be left to the jury." Akhtar v. JDN Props. at 

Florham Park, L.L.C., 439 N.J. Super. 391, 403 (App. Div.), 

certif. denied, 221 N.J. 566 (2015).

B.

Mode-of-operation liability principles have long been 

recognized in our state, in factual contexts where a dangerous 

condition of the premises has been shown to arise from a 

defendant's decision to provide goods to customers through 

"self-service" methods. As Chief Justice Weintraub observed 

fifty years ago in Wollerman v. Grand Union Stores, Inc., 47 

N.J. 426, 429 (1966), a case in which a supermarket customer 

shopping in the vegetable section slipped and fell when she 

stepped on a string bean on the floor:

When greens are sold from open bins on a 

self-service basis, there is a likelihood 

that some will fall or be dropped to the 

floor. If the [defendant] operator chooses 

to sell in this way, he must do what is 

reasonably necessary to protect the customer 

from the risk of injury that mode of 

operation is likely to generate; and this 

whether the risk arises from the act of his 

employee or of someone else he invites to 

the premises. The operator's vigilance must 

be commensurate with that risk.

[(Emphasis added).]
16 A-2493-14T2

As the Chief Justice further noted in Wollerman, if the 

dangerous condition on the floor was the result of another 

patron's conduct in dropping the string bean, "since [that] 

patron's carelessness is to be anticipated in this self-service 

operation, [the] defendant [retail store] is liable, even 

without notice of the bean's presence on the floor[.]" Ibid.

(emphasis added).

The effect of a mode-of-operation theory of liability — in 

self-service situations where there is a reasonable factual 

basis in the evidence to support that theory — is to relieve a 

plaintiff of having to prove the usual element of actual or 

constructive notice of a hazard, which otherwise is necessary 

for an ordinary claim of negligence. Such circumstances give 

rise to "a rebuttable inference that the defendant is negligent, 

and obviates the need for the plaintiff to prove actual or 

constructive notice." Prioleau, supra, 223 N.J. at 258. 

The applicable Model Civil Jury Charge, 5.20F(11),

implements this concept, by instructing that a defendant 

proprietor that has engaged in such a self-service mode of 

operation may be liable for an injury proximately caused by such 

a dangerous condition, "even if [the] defendant and his/her 

employees did not have actual or constructive knowledge of the 

particular unsafe condition [that] cause[d] the accident and 
17 A-2493-14T2

injury." Ibid. However, the model charge does not make a 

proprietor strictly liable for a slip-and-fall accident just 

because the hazard on the floor stemmed from a self-service mode 

of operation. The model charge also makes clear that the 

defendant is not liable in such circumstances unless it "failed 

to exercise reasonable care to prevent such [a] hazardous 

condition from arising or failed to exercise reasonable care to 

discover and correct such [a] hazardous condition." Ibid.

(emphasis added); see also Prioleau, supra, 223 N.J. at 259-60 

(noting that the defendant in such cases may rebut the inference 

of liability with counterproof that it exercised reasonable

care, in light of its self-service mode of operation under the 

circumstances). 

Our case law has found mode-of-operation liability concepts 

specifically applicable to situations where a proprietor has 

operated a cafeteria within a retail establishment in which 

patrons are permitted to carry food and drink freely within the 

confines of the premises. For example, in Bozza v. Vornado, 

Inc., 42 N.J. 355, 358 (1964), the Supreme Court held mode-ofoperation principles applied to a cafeteria-style restaurant 

where the plaintiff slipped on a "sticky, slimy" substance.

Patrons of the restaurant would order food at a counter, and 

were then permitted to carry that food to other parts of the 
18 A-2493-14T2

restaurant without trays or lids for their beverages. Ibid.

The activity was treated as a "self-service" mode of operation 

despite the fact that patrons were initially served food at the 

counter by the defendant's employees.

Similarly, in Ryder v. Ocean Cty. Mall, 340 N.J. Super.

504, 509-10 (App. Div.), certif. denied, 170 N.J. 88 (2001), we 

concluded that the "mode-of-operation" rule applied to a retail 

mall where the plaintiff slipped on an "Orange Julius" drink 

spilled in a common area where shoppers often stopped to consume 

food that had been purchased elsewhere in the building. Citing

Bozza, we ruled that the practice of allowing patrons to carry

food and drink within the confines of the defendant's mall

rendered it "the functional equivalent of a cafeteria." Ibid.

In Nisivoccia v. Glass Gardens, Inc., supra, 175 N.J. at 

565-66, the Supreme Court found the mode-of-operation theory 

applied where a plaintiff had slipped on loose grapes near the 

checkout lanes of a supermarket. Testimony during the trial 

showed that grapes most frequently had spilled onto the floor in 

the produce aisle and the checkout area of the store, after 

being handled by either patrons or employees. Id. at 562. The 

Court underscored in Nisivoccia the various "self-service" 

aspects of the defendant store's operations, including the 

customer's handling of produce in the aisle, and later placing 
19 A-2493-14T2

the items on the checkout counter. Id. at 565. The Court held 

that the "'[m]ode of operation' . . . includes the customer's 

necessary handling of goods when checking out, an employee's 

handling of goods during checkout, and the characteristics of 

the goods themselves and the way in which they are packaged."

Id. at 566. Hence, the mode-of-operation concept applied,

despite the employees' presence and involvement in the checkout 

process.

These cases and their mode-of-operation principles were 

recently cited with approval and applied by the Supreme Court in 

Prioleau, supra. The factual setting in Prioleau involved a 

plaintiff who slipped and fell on a greasy floor while walking 

to a restroom in a fast-food restaurant. Prioleau, supra, 223 

N.J. at 251. The plaintiff argued that the proprietor was 

liable based on a mode-of-operation theory, contending that the 

greasy condition of the floor was likely caused by employees who 

tracked grease on their shoes while going to the restroom to and 

from the kitchen. The Court rejected that theory because the

alleged condition was not the result of a "self-service" aspect 

of the restaurant's operations. Id. at 264.

The Supreme Court clarified in Prioleau that the concept of 

"self-service" signifies that "customers independently handle 

merchandise without the assistance of employees" at some point, 
20 A-2493-14T2

increasing "the risk that a dangerous condition will go 

undetected[.]" Id. at 262. Moreover, in analyzing the 

underlying facts in Prioleau the Court observed that 

nothing in the record suggests that when she 

fell, plaintiff was engaged in, or in 

contact with, any self-service activity, 

such as filling a beverage cup at a 

restaurant soda machine, selecting items 

from a condiment tray, or that patrons were 

carrying their drinks or food to the 

restroom area. 

[Id. at 251 (emphasis added).]

In keeping with these mode-of-operation precedents, the 

present case qualifies as a "self-service" context with respect 

to the free cheesecake samples that were offered to customers 

within the Costco store. Although a defense witness described 

the samples as "bite sized," that same witness acknowledged that 

at times customers, particularly children, would walk away with 

the paper cups containing the samples without consuming them on 

the spot. 

Here, as in Bozza and Ryder, the customers were freely 

permitted by defendant to carry food items around the premises,

and to consume and discard them at their own pace. Given that 

mode of operation, it was surely foreseeable that some portions 

of the cheesecake samples could be dropped on the floor, out of 

the sight of the demonstrator who had been distributing them at 

the sample table. It was also foreseeable that some patrons 
21 A-2493-14T2

might take away an extra sample cup for a companion who was 

shopping with them in another location of the store, and that 

food fragments from those extra samples could be dropped as 

well, away from the vendor stand.

We recognize that the "self-service" fact patterns in Bozza

and Ryder involved food and beverage items that were purchased 

by customers on the premises. Cf. Troupe v. Burlington Coat 

Factory, 443 N.J. Super. 596, 604 (App. Div. 2016) (finding a 

mode-of-operation theory inapplicable where a customer slipped 

on what appeared to be a berry that was neither sold nor 

provided by the defendant store). However, we discern no legal 

significance in whether the edible items are offered within a 

defendant's establishment for free or instead for sale. As the 

assistant general manager acknowledged, the free samples are 

offered to customers for its own business advantage, as a method 

of promotion and advertising to encourage customers to purchase 

take-home versions of those same products.

To be sure, our case law requires that a plaintiff 

demonstrate a reasonable nexus between the store's self-service 

activity and the dangerous condition allegedly producing his or 

her injury. See, e.g., Troupe, supra, 443 N.J. Super. at 603-04

(reiterating the nexus requirement); Arroyo v. Durling Realty, 

LLC, 433 N.J. Super. 238, 245-46 (App. Div. 2013) (rejecting a 
22 A-2493-14T2

mode-of-operation claim where no nexus was shown between the 

defendant's sale of telephone calling cards displayed on a rack 

inside of the defendant store and plaintiff's accident in 

slipping on a discarded phone card on the sidewalk outside of 

the store). 

Viewing the record here, as we must, in a light most 

favorable to plaintiff, there is a reasonable factual basis 

supporting such a nexus in this case. However, the jury must 

first be persuaded that the white substance on the floor that 

plaintiff perceived to be "yogurt-based" was, in fact, a portion 

of the free cheesecake samples. If the jury is not convinced of 

that source, then it must render a verdict for defendant on the 

issue.

We recognize that plaintiff was unable to identify with 

precision the substance on the floor that allegedly caused him 

to slip. There is a plausible basis, however, to believe that 

the white substance could have been cheesecake, which may well 

have become softer, creamier, and more "yogurt-like" in 

appearance after being displayed in sample cups for some 

unspecified time at room temperature. Plaintiff's inability to 

describe the substance in more exact terms is understandable 

given the sudden and traumatic nature of his fall. Of course, 

he may well have been mistaken in his description and the 
23 A-2493-14T2

substance could have come from another source, but that is a 

factual matter for the jury to evaluate.

We are mindful that, apart from the admissible hearsay 

statement that plaintiff's companion claimed to have overheard,

none of the store employees who testified admitted that they 

observed any foreign substance on the floor in the area where 

plaintiff fell, but that does not render incredible plaintiff's 

claim that the substance was there. Nor do the hourly 

maintenance floor checks conducted by staff logically rule out 

an inference that a cheesecake sample had been dropped onto the 

floor during the interim after the last inspection took place, 

or that it had been overlooked during the inspection.

We likewise are mindful that the vendors were expected to 

leave the store, as one witness noted, by 6:00 p.m. and that 

plaintiff estimated that the time of his accident was after 6:00 

p.m. Even so, we disagree with the trial court's post-trial 

observation that the estimated time frame eliminates a 

reasonable possibility that the offending morsel was dropped on 

the floor at some point before 6:00 p.m. and had not yet been 

detected or swept up when plaintiff stepped on it. Furthermore, 

the diagram of the premises attested to by plaintiff is 

reasonably consistent with his claim that the location of his 
24 A-2493-14T2

fall was a relatively short distance from where the cheesecake 

samples had been offered.

The trial court failed to give plaintiff the benefit of 

these reasonable inferences when it declined to allow the jurors 

as fact-finders to consider whether the factual predicates for 

mode-of-operation liability were proven here. Although 

plaintiff has not provided a particularly compelling factual 

basis to support his mode-of-operation argument, he presented

enough evidence to at least justify the model charge being 

issued. The jurors should have been allowed to evaluate whether 

he met his threshold burden of proving the necessary factual 

nexus to a defendant's self-service activity. There also remain 

important factual questions about whether the substance was 

actually observed on the floor, whether Costco's inspections 

were adequate, and whether the locations and hours of the 

demonstrators' activities actually coincide with plaintiff's 

theory of liability.

C.

We therefore conclude that the trial court's rejection of

the mode-of-operation charge here was prejudicial error, and 

that plaintiff is thereby entitled to a new trial at which the 

charge will be provided. That said, we provide several caveats

for guidance to the court and the parties. First, as plaintiff 
25 A-2493-14T2

conceded at oral argument on appeal, the question of ordinary 

negligence is not to be tried a second time. Plaintiff already

has had a fair opportunity to convince a jury at the first trial 

of Costco's liability under ordinary negligence principles and 

failed. That claim is conclusively decided. See Henebema v. S. 

Jersey Transp. Auth., 219 N.J. 481, 491-92 (2014) (holding that 

when a new civil trial is ordered because of a defect in the 

jury instructions, the original jury's disposition of certain 

discrete issues may be preserved if those issues are 

sufficiently distinct from the other matters that need to be 

litigated in the new trial).

Second, given the pivotal factual dispute here concerning

nexus, the trial court on retrial shall include with the model 

charge a specific instruction advising the jurors that they 

cannot hold Costco liable under a mode-of-operation theory 

unless they find that plaintiff has persuaded them by a 

preponderance of the evidence that he slipped on a substance 

that came from the stand with free samples. At oral argument on 

the appeal, plaintiff conceded that there is no sufficient 

factual nexus to the store's food and beverage concession, which

was located a further distance within the store from the spot 

where he fell. His claim at the second trial must specifically
26 A-2493-14T2

turn on whether or not he slipped on a fragment of cheesecake 

offered at the vendor stand.

Third, we underscore that defendant retains the ability to 

rebut any mode-of-operation inference with competing proof that 

its maintenance activities to inspect for and clean up debris on 

the store's floor were reasonable under the circumstances. See

Prioleau, supra, 223 N.J. at 259-60; Nisivoccia, supra, 175 N.J.

at 564-65.

6 

The judgment for defendant is vacated and the matter is 

remanded for a new trial consistent with this opinion.

 

6 We need not address Costco's provisional argument raised at 

oral argument on the appeal that if a mode-of-operation theory 

is allowed on remand, then Costco should be able to implead the

demonstrators as third-party defendants. We refer that 

procedural question, and the appropriateness of such a late 

request to amend the pleadings, to the trial court to consider

in the first instance.