                NOT FOR PUBLICATION WITHOUT THE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,
                                       APPROVED FOR PUBLICATION
     Plaintiffs-Appellants,                 April 1, 2016

v.                                       APPELLATE DIVISION

COSTCO WHOLESALE WAREHOUSE,
Individually and d/b/a COSTCO
OF OCEAN TOWNSHIP,1

     Defendant-Respondent.
____________________________________

         Argued March 14, 2016 – Decided April 1, 2016

         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").
     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-of-

operation 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.



                                          2                                    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




                                         3                                 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




                                                4                                    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."



                                               5                                      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




                                    6                                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.



                                       7                              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.




                      8                         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 yogurt-

like 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 "yogurt-
based."



                                          9                                 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




                                          10                                     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




                                        11                                 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




                                            12                               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-of-

operation        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).




                                                 13                                        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




                                            14                                   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).]




                                        15                                  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




                                                 16                                            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-of-

operation         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




                                             17                                        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




                                          18                                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,




                                       19                              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



                                        20                              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




                                           21                              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




                                               22                                  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




                                            23                                          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




                                              24                                   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




                                         25                                   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.



                               26                        A-2493-14T2
