NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1687-14T4

ANNETTE TROUPE,

Plaintiff-Appellant,

v.

BURLINGTON COAT FACTORY

WAREHOUSE CORPORATION,

Defendant-Respondent.

________________________________________

Submitted December 7, 2015 – Decided

Before Judges Sabatino and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Docket No. 

L-8271-12.

Kelso and Bradshaw, attorneys for appellant 

(Patrick J. Bradshaw, on the brief).

Reger Rizzo & Darnall, LLP, attorneys for 

respondent (Richard M. Darnall and Thomas M. 

Krick, on the brief).

 The opinion of the court was delivered by 

SUTER, J.S.C. (temporarily assigned).

Annette Troupe appeals the dismissal of her slip and fall 

complaint following a motion for summary judgment by Burlington 

Coat Factory Warehouse, Inc. (Burlington). We affirm because, 

lacking any actual or constructive notice of the dangerous 

January 26, 2016

APPROVED FOR PUBLICATION

January 26, 2016

APPELLATE DIVISION
2 A-1687-14T4

condition, Burlington did not breach the duty of care to 

plaintiff as its invitee. We hold as well, by applying the 

Supreme Court's recent decision in Prioleau v. Kentucky Fried 

Chicken, Inc., 223 N.J. 245 (2015), that the mode-of-operation 

rule does not apply here, where the berry on the floor that 

apparently caused the fall was not significantly connected with 

any self-service component of Burlington's business.

I.

On the afternoon of April 22, 2011, plaintiff Annette 

Troupe and her sister entered Burlington Coat Factory in the 

Middlesex Mall and proceeded to the "Baby Depot" section in the 

back of the store. Plaintiff's right foot slipped on an unseen 

berry in the aisle, causing her to fall and seriously injure her 

knee and back. Investigation revealed there was no other fruit 

in the vicinity and no one eating fruit. The berry left a telltale purplish smear along the floor extending from where Troupe 

started to slip to where she came to rest, leaving a "little 

seed." Troupe filed suit in December 2012.

Discovery revealed that an outside service cleaned the 

store every morning before it opened. Aside from that, there 

was no periodic sweeping of the floors, but employees who 

dropped or saw something on the floor would pick up what was 

there. The baby department required about the same amount of 
3 A-1687-14T4

cleaning as the other departments, according to the former store 

manager. 

Troupe's liability expert issued a report that was critical 

of Burlington for its lack of periodic inspections. He said 

because Burlington sold baby and children's clothing, 

"Burlington . . . should have foreseen, that at various times 

those babies and children would be doing the things that babies 

and children normally do, including eating snacks, drinking 

drinks, and dropping things onto the floor." This posed a

"substantial risk of injury." The expert opined that 

Burlington's failure to inspect was a "substantial contributing 

cause of Ms. Troupe's fall." 

Burlington's motion for summary judgment was granted by 

Judge Arthur Bergman, who found Burlington had not breached its 

duty of care because there was no evidence of actual or 

constructive notice by Burlington of the berry prior to Troupe's 

slip and fall. He also rejected application of the mode-ofoperation rule because the berry "wasn't anything that they're 

selling." Troupe appeals from that order. 

II.

Where there is an appeal from a summary judgment decision, 

we review the decision de novo, meaning that we apply the same 

standards used by the trial judge. W.J.A. v. D.A., 210 N.J. 229, 
4 A-1687-14T4

237 (2012). The question then is whether the evidence, when 

viewed in a light most favorable to the non-moving party, raises 

genuinely disputed issues of fact sufficient to warrant 

resolution by the trier of fact or whether the evidence is so 

one-sided that one party must prevail as a matter of law. Brill 

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). 

Applying this standard, the record amply supports Judge 

Bergman's finding there were no genuine issues of fact about 

Burlington's actual or constructive notice of the dangerous 

condition prior to Troupe's fall. Further, the judge correctly 

decided, as a matter of law, that the mode-of-operation rule 

does not apply to these facts.

A.

Under New Jersey law, "[b]usiness owners owe to invitees a 

duty of reasonable or due care to provide a safe environment for 

doing that which is within the scope of the invitation." 

Nisivoccia v. Glass Garden, Inc., 175 N.J. 559, 563 (2003); 

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). The 

duty of due care to a business invitee includes an affirmative 

duty to inspect the premises and "requires a business owner to 

discover and eliminate dangerous conditions, to maintain the 

premises in safe condition, and to avoid creating conditions 
5 A-1687-14T4

that would render the premises unsafe." Nisivoccia, supra, 175 

N.J. at 563. 

Owners of premises are generally not liable for injuries 

caused by defects of which they had no actual or constructive 

notice and no reasonable opportunity to discover. Ibid. For 

that reason, "[o]rdinarily an injured plaintiff . . . must 

prove, as an element of the cause of action, that the defendant 

had actual or constructive knowledge of the dangerous condition 

that caused the accident." Ibid.

A defendant has constructive notice when the condition 

existed "for such a length of time as reasonably to have 

resulted in knowledge and correction had the defendant been 

reasonably diligent." Parmenter v. Jarvis Drug Stores, Inc., 48 

N.J. Super. 507, 510 (App. Div. 1957). Constructive notice can 

be inferred in various ways. The characteristics of the 

dangerous condition giving rise to the slip and fall, see, Tua 

v. Modern Homes, Inc., 64 N.J. Super. 211, 220 (App. Div. 1960) 

(finding constructive notice where wax on the floor had hardened 

around the edges), or eyewitness testimony, see, Grvanka v. 

Pfeifer, 301 N.J. Super. 563, 574 (App. Div. 1997), certif. 

denied, 154 N.J. 607 (1998) (finding constructive notice where 

eyewitness noted the light had been out for a while) may support 
6 A-1687-14T4

an inference of constructive notice about the dangerous 

condition.

Here, the trial court was correct that Troupe did not show 

there was actual or constructive notice of the dangerous 

condition of the premises prior to her fall. There was no proof 

Burlington or any employee had actual knowledge about the berry 

on the floor. There were no eyewitnesses and nothing about the 

characteristics of the berry that would indicate how long it had 

been there. There were no other berries in the vicinity. No 

one was found to have been eating berries in the area. Without 

actual or constructive notice of the dangerous condition, the 

trial judge was correct that Burlington did not breach its duty 

to Troupe. 

B.

Troupe contends the trial court erred in not applying the 

mode-of-operation rule because "the mode-of-operation that 

created the hazard was the lack of any periodic inspection of 

the floors during the business shopping day." Most recently, 

the Court has clarified the mode-of-operation rule in Prioleau, 

supra, 223 N.J. at 262-63. Prioleau involved a slip and fall 

near the bathroom at a Kentucky Fried Chicken restaurant on 

either grease tracked from the kitchen by employees or water 

tracked into the store by customers on a rainy day. Id. at 249. 
7 A-1687-14T4

The trial record established that Prioleau's slip and fall was 

"unrelated to any aspect of defendants' business in which the 

customer foreseeably serves himself or herself, or otherwise 

directly engages with products or services, unsupervised by an 

employee." Ibid. The Court held it was reversible error to 

charge the jury on the mode-of-operation rule where there was no 

connection between the slippery condition of the floor and the 

self-service component of the business. Ibid. 

In our case, Troupe encourages us to expand the mode-ofoperation rule beyond the narrow circumstances to which it has 

been held to apply, claiming it should apply where the mode of 

operation has to do with the store's cleaning schedule because 

it was foreseeable that food items would be brought into the 

children's department and then dropped on the floor by parents 

or children. We decline to do so because this misconstrues the 

rule in a manner that is inconsistent with Prioleau. 

To begin with, the mode-of-operation rule is a "special 

application of foreseeability principles" because of the risks 

posed by self-service and "not a general rule of premises 

liability." Id. at 338. When the rule applies, it "relieves 

the plaintiff of the burden of proving actual or constructive 

notice of the dangerous condition." Ibid. It "gives rise to an 

inference of negligence, shifting the burden of production to 
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the defendant, who may avoid liability if it shows that it did 

all that a reasonably prudent man would do in the light of the 

risk of injury the operation entailed." Ibid. (quotations and 

alterations omitted). However, "the mode-of-operation doctrine 

has never been expanded beyond the self-service setting, in 

which customers independently handle merchandise without the 

assistance of employees or may come into direct contact with 

product displays, shelving, packaging, and other aspects of the 

facility that may present a risk." Id. at 337-38. The Court 

observed that what is important is "a nexus between self-service 

components of the defendant's business and a risk of injury in 

the area where the accident occurred." Ibid. 

In applying these principles, we agree with Judge Bergman 

the mode-of-operation rule does not apply to the facts in this 

case. Here, the accident did not involve any self-service 

component of Burlington's business. The slip and fall occurred 

in an aisle, not in an area of clothing racks or "facilities 

traditionally associated with self-service activities." There 

was no demonstrable nexus between the self-service component of 

Burlington's business, namely selling clothes and other non-food 

items, and the risk of a customer slipping on a berry in the 

aisle. See Arroyo v. Durling Realty, 433 N.J. Super. 238, 246 

(App. Div. 2013) (rejecting a plaintiff's mode-of-operation 
9 A-1687-14T4

theory of liability where the nexus between plaintiff's fall 

outside of a convenience store on a discarded phone card and the 

store's self-service rack offering such cards for sale was 

"extremely attenuated"). Troupe did not show that the fruit had 

anything to do with Burlington's business. 

Troupe's expert report is not illuminating because it does 

not address the mode-of-operation rule as our Supreme Court has 

described it in Prioleau. Mode-of-operation liability is not 

created merely because a store's cleaning schedule is allegedly 

inadequate. Instead, such a theory of liability requires that 

the dangerous condition arise from a self-service characteristic 

of the store's operations. Prioleau, supra, 223 N.J. at 337-38. 

To decide this case, we do not need to predict how the 

mode-of-operation rule will be applied to the myriad of future 

cases involving businesses that have self-service components. 

For our decision, because the berry in the children's department 

aisle had no demonstrable connection with any aspect of 

Burlington's self-service business, the rule simply does not 

apply. See Nisivoccia, supra, 175 N.J. at 565 (finding mode-ofoperation instruction appropriate where customer slipped on 

grape near checkout in supermarket that sold grapes in plastic 

bags open at the top). 
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The Supreme Court has given us the principles that are to 

guide us in our application of the mode-of-operation rule. 

Troupe proposes an expansion that would swallow the rule by, in 

effect, shifting the burden of production to self-service 

businesses to show what conduct by their patrons was not 

foreseeable. However, for the rule to apply as the Court has 

explained, it is the patron who must first show a clear nexus 

between the self-service component of the business and "a risk 

of injury in the area where the accident occurred." Id. at 262. 

That nexus was not shown here, which precludes application of 

the mode-of-operation rule. 

Because Troupe failed to show Burlington had actual or 

constructive notice of the berry in the aisle, and because the 

mode-of-operation rule does not apply, the trial court was 

correct in granting Burlington's motion for summary judgment.

Affirmed.