Last year, the Tenneessee Supreme Court, in Blair v. West Town Mall, adopted the “mode of operation” doctrine in premises liability cases, holding that “that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition’s existence.” (Thanks to John Day for pointing this out.)
The “mode of operation” doctrine is particularly applicable in cases involving retail chains with virtually identical operations and hazards occurring in thousands of locations.
Although the Tennessee court cited only Tennessee precedents, a 1967 Georgia case has been cited by courts in several other states as precedent for the evolving principle that a store’s “mode of operation” can fulfill the superior knowledge or constructive notice requirement in a premises liability case. The seminal case on this point is Colonial Stores, Inc. v. Donovan, 115 Ga. App. 330, 154 S.E.2d 659 (1967), which addressed hazards created by the manner of displaying merchandise in a retail store.

A person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition [cit.] and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care. [cit.] A storekeeper who balances merchandise on display in a precarious manner (or allows another to so arrange a display) should anticipate that slight force, not sufficient ordinarily to suggest to the actor who does not know of the peril that injury will result, may be sufficient to cause injury, and the storekeeper is not relieved of the consequences of this negligence by an intervening act which he should have anticipated. [cit.] Constructive knowledge of a defect, i.e., that the defendant ought to have known of the defect in the exercise of ordinary care, is sufficient to charge the defendant with liability for injuries caused by the defect. [cit.] Ordinarily, whether the owner or occupant of land exercises ordinary care in keeping premises in a safe condition, upon which an invitee goes and is injured, whether the invitee could have avoided injury in the exercise of ordinary care, or whether both were negligent in some degree, as the proximate cause of an injury, or the absence of any negligence, are questions for jury determination, which the court will not decide as a matter of law on demurrer except as to acts declared by law to be negligence, or palpable and indisputable cases where reasonable minds cannot differ as to the conclusion to be reached.” 115 Ga. App. at 331-32 (emphasis supplied)

Citing Donovan, in Keaton v. A.B.C. Drug Co., 266 Ga. 385, 387, 467 S.E.2d 558, 561 (1996), the Georgia Supreme Court affirmed a reversal of summary judgment for the defendant. The Court shifted the emphasis from an immediate spill to the merchant’s manner of displaying merchandise so as to create the likelihood that a spill would occur, holding that the merchant had constructive knowledge of a hazard, superior to the knowledge of the plaintiff, under the following circumstances.

The jury was authorized to find that by placing a caustic substance contained in a package without some sort of leakage preventor, such as a protective wrap, at a level above the eyes of an average adult, ABC should have anticipated that in the event of a leakage, injury would result. [cit.] Further, by placing the bleach at such a level, ABC created a high risk of injury from spilling bleach by virtue of a loose cap, and created an impediment to a person’s ability to exercise caution by checking to see if the cap was loose. Clearly, had ABC placed the bleach at a level significantly below the eyes of an average adult, the risk of injury is different in type and scope from the risks presented when the bleach is placed at a higher level. Also, the ability of a plaintiff to avoid injury by exercising caution for his or her own safety is substantially heightened if the bleach is placed at a lower level.” 266 Ga. at 387.

In Rhodes v. K-Mart Corp., 240 Ga. App. 57, 522 S.E.2d 563 (1999), the court reversed summary judgment for the defendant, holding that “a jury issue was created as to whether K-Mart should have anticipated that placing a previously opened box containing a fan on a high shelf would cause injury. A jury issue also exists as to whether K-Mart should have been aware of the hazardous condition.” 240 Ga. App. at 59.
In Wallace v. Sears, Roebuck & Co., 196 Ga. App. 221, 396 S.E.2d 41, (1990), the Court of Appeals reversed summary judgment, holding that “the premises were not ‘otherwise safe’ because appellee itself had created the possibility of misuse of its skateboards by displaying them in such a manner as to give children ready access to them.” 196 Ga. App. at 222 (emphasis supplied). Similarly, in Cox v. K-Mart Enterprises of Georgia, Inc., 136 Ga. App. 453, 221 S.E.2d 661 (1975), the Court reversed summary judgment, citing Donovan as authority for the principle that a “person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition . . . and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care.” 136 Ga. App. at 454.
In 2002, the Georgia Court of Appeals reversed summary judgment in a static defect fall case, in which merchandise was displayed by an unprotected ramp and ledge. In Myers v. Harris, 257 Ga. App. 286, 570 S.E.2d 600 (2002), the Court held, with regard to the store operator, that “there is a question of fact as to whether the configuration of the merchandise display by Son-Rise was such that the injury sustained was proximately caused by its negligence and whether Myers exercised reasonable care for her own safety.” 257 Ga. App. at 288. (emphasis supplied)
Also in 2002, in Wal-Mart falling merchandise case, the Connecticut Appellate Court cited Georgia’s Donovan case as authority for proposition that “[w]hether a storekeeper has displayed merchandise in an unsafe manner such that injury to customers is foreseeable is for the fact finder to determine and is to be answered by considering all of the surrounding circumstances.” Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 476, 806 A.2d 546, 555 (2002). The Court in Meek further articulated the “mode of operation” theory, holding that “[i]njuries also may result indirectly from a proprietor’s defective or negligent display of merchandise that nonetheless are wholly to be expected from the store’s mode of operation and may be taken into account by the fact finder when it considers whether the method of display was unsafe.” 806 A.2d at 556. (emphasis supplied)
The Michigan Court of Appeals cited Donovan in Osiecki v. Wal-mart Stores, 1997 Mich. App. LEXIS 2131 (Mich. App. 1997), as authority for the proposition that

[A] rational trier of fact could conclude that defendant breached its duty of due care for business invitees by displaying merchandise in such a precariously balanced manner that slight force, not sufficient ordinarily to suggest the existence of a hazard to a customer unaware of the peril, may be sufficient to cause injury, particularly where the storekeeper must anticipate that, in a self-serve retail operation, application of such force by customers is not only foreseeable but intended by the retailer.

The Donovan doctrine has been further developed in “negligent activity” or “mode of operation” cases arising in courts throughout the United States. The Florida Supreme Court concisely summarized the rule as follows:

[T]he negligent mode of operation theory merely recognizes the common-sense proposition of negligence law that the duty of care required under the circumstances may consist of taking reasonable precautions so as to minimize or eliminate the likelihood of a dangerous condition arising in the first instance. Markowitz v. Helen Homes, 826 So. 2d 256, 260 (Fla. 2002)

In Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398, 733 P.2d 283 (1987), the Arizona Supreme Court held, the “‘mode-of-operation’ rule looks to a business’s choice of a particular mode of operation and not events surrounding the plaintiff’s accident . . . [P]roof of a particular mode-of-operation simply substitutes for the traditional elements of a prima facie case — the existence of a dangerous condition and notice of a dangerous condition.”
In another Wal-Mart case, the Hawaii Supreme Court approved the “mode of operation” doctrine as a “logical extension of the traditional rule of premises liability, ” holding

where a plaintiff is able to demonstrate that the business proprietor adopted a marketing method or mode of operation in which a dangerous condition is reasonably foreseeable and the proprietor fails to take reasonable action to discover and remove the dangerous condition, the injured party may recover without showing actual notice or constructive knowledge of the specific instrumentality of the accident. Gump v. Wal-Mart Stores, Inc., 93 Haw. 417, 420-21, 5 P.3d 407, 410-11 (2000).

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).