                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-2884-12T4


JANICE J. PRIOLEAU,
                                        APPROVED FOR PUBLICATION

      Plaintiff-Respondent,                    March 3, 2014

v.                                         APPELLATE DIVISION


KENTUCKY FRIED CHICKEN,
INC. and KFC CORPORATION,

      Defendants,

and

YUM BRANDS, INC. and
KFC U.S. PROPERTIES, INC.,

     Defendants-Appellants.
_______________________________

          Argued October 30, 2013 - Decided March 3, 2014

          Before Judges       Sapp-Peterson,   Lihotz      and
          Hoffman.

          On appeal from the Superior Court of New
          Jersey, Law Division, Essex County, Docket
          No. L-5817-10.

          Beth   A.  Carter   argued the  cause  for
          appellants (Bennett, Bricklin & Saltzburg,
          L.L.C., attorneys; Ms. Carter, of counsel
          and on the briefs).

          Glenn A. Montgomery argued the cause for
          respondent (Montgomery, Chapin & Fetten,
          P.C., attorneys; Mr. Montgomery, of counsel;
          Gary Ahladianakis, on the brief).
      The opinion of the court was delivered by

LIHOTZ, J.A.D.

      Defendants Yum Brands, Inc. and KFC U.S. Properties, Inc.

appeal from a jury verdict awarding plaintiff Janice J. Prioleau

damages   for     injuries    suffered    from    a     fall   on    defendants'

restaurant premises.         Defendants maintain the trial judge erred

in denying their motion for a directed verdict.                 Alternatively,

defendants      argue   erroneous   jury    instructions       and    incorrect

evidential determinations require the verdict be set aside and a

new trial granted.

      Following our review, we affirm the denial of defendants'

motion for a directed verdict.            However, we agree that use of

the   mode-of-operation       liability    jury       charge   was    erroneous,

warranting reversal.          Accordingly, we vacate the verdict and

remand for a new trial.

                                     I.

      The facts are taken from the record of the three-day jury

trial.    Early in the evening of December 26, 2009, between 5 and

6 p.m., plaintiff, who was traveling with her adult children

Richard and Adriana, stopped in the Cherry Hill KFC restaurant

owned and operated by defendants.

      Plaintiff and her children confirmed the weather was "very

bad," it was "pouring" rain, and there was "a torrential storm."




                                     2                                  A-2884-12T4
Plaintiff entered the restaurant without aid of an umbrella.

Further, plaintiff recalled she and her children "were wet[,]"

her jacket, clothing and sneakers were soaked, and the family

"tracked water in[to]" the restaurant.

    When     the   family    entered    the       premises,    only   one     other

customer was in the dining area.                 Initially, plaintiff did not

notice water or "wetness" on the restaurant's floor.                      Her son

and daughter strode to the counter to place their order and

plaintiff headed toward the restroom.                Approximately five feet

from the restroom, plaintiff started "to slip and slide like

[she] was on ice."       She fell, extending her arms and hands to

brace her fall and avoid banging her knees, and landed on her

buttocks.      Richard      attempted       to    assist    plaintiff,    but    he

"started to slip[,] also."        Adriana "ran over also and tried to

guide [plaintiff] up[, but] she started to slip."                       Then, the

male patron seated nearby helped plaintiff rise from the floor.

    During     trial,    plaintiff      described      the    floor's    surface,

stating: "It was just like a sheet of ice.                 It was slippery.      It

was wet.     And when I fell, that's what I came up was on my

clothes     [sic]."         Plaintiff       said     the     floor    felt      like

"grease        . . . and water."            On cross-examination, plaintiff

expounded,     exclaiming:       "I felt it was wet first.                   It was




                                        3                                 A-2884-12T4
slippery.      And      . . . when we first started sliding is when

[sic] I realized that it was grease mixed with water."

      She and her children were approached by Debbie Lovato, the

restaurant's        assistant      manager.            Richard     informed    Lovato

plaintiff had slipped.             She declined medical attention stating

"[i]t wasn't that serious."              Plaintiff and her family ate their

food and left.

      Plaintiff did not feel any immediate pain resulting from

her fall; she "figured [she] would be okay."                       However, Adriana

drove home to Newark, Delaware because plaintiff "was in too

much pain."     Upon arriving in Newark, plaintiff sought treatment

at Christiana Hospital's emergency room and was discharged the

same day.      Two weeks later, on January 11, 2010, she consulted

her   family   doctor.        As   a     result   of    the   accident,   plaintiff

injured her neck, back, and hands; experienced numbness in her

left leg; and tingling in both arms and her left foot.                              She

underwent a CT scan of her lumbar spine, which revealed disc

bulges and arthritis at L1-2, L2-3, L3-4, and L4-5, as well as a

herniation     in    L5-S1.        She     declined      spinal     injections      and

surgical intervention, and attended physical therapy a few days

a week for approximately two months.

      Plaintiff      suffered       no     lost    wages,        acknowledging      she

returned to work without missing any time, despite the physical




                                           4                                  A-2884-12T4
demands     of   her    occupation.        Plaintiff      last      received    medical

treatment in August 2010.

      On cross-examination, defendants attempted to inquire into

plaintiff's        prior    medical    treatments     for     her    back   and   neck.

Plaintiff had testified she only had prior difficulties with her

knee.       Defendants, intending to impeach plaintiff's testimony,

questioned her regarding medical care undertaken to treat her

lumbar spine in 2002.             The judge sustained plaintiff's objection,

precluding the use of plaintiff's prior medical records during

cross-examination.

      Additional        evidence       introduced        by   plaintiff        included

excerpts     from      deposition      testimony    of    defendants'       employees.

Mark Loveless, the loss prevention manager, described various

company policies.           He stated a warning sign is used if floors

are   wet    and    there    is    a   general     requirement       to   monitor    the

customer floor area for water or spills.                      Michelle Abdou, the

restaurant's general manager, admitted no policy required the

floor to be mopped periodically throughout the day, rather it

was mopped in the evening and in the event of a spill, or if

water was tracked in by customers.                 Further, when a floor is wet,

warning signs are placed at the affected site.                            Cheryl Lynn

Gross, an area coach and Abdou's supervisor, described how the

restaurant cooks chicken in open split vat fryers and pressure




                                           5                                   A-2884-12T4
cookers.       She noted oil is used in the cooking process.                           During

kitchen operations in the Cherry Hill restaurant, the kitchen

floor is mopped two to three times per day and also if there is

a spill.       When asked whether someone on the cook line could get

oil      on         their        footwear,        Gross        responded          "possibly."

Acknowledging employees access the same restrooms as customers,

Gross was asked whether kitchen workers with soiled footwear

could      track      oil        to   the    restroom.          Again       she    responded,

"possibly."           At her deposition, Lovato testified that dining

area tables were wiped every half-hour and the restrooms were

checked when the tables were wiped.                           Lovato admitted she was

unaware of any entries recording an inspection of the restaurant

floor in the four hours preceding plaintiff's fall.                               She had not

personally performed inspections, nor could she remember who was

working that day that may have done so.

      Plaintiff presented expert testimony from Allan D. Tiedrich,

MD,   an      expert        in    physical     medicine       and     rehabilitation       and

orthopedics.           He discussed his review of plaintiff's medical

records and the examination he performed on September 13, 2010.

During     cross-examination,               defendants       established      Dr.    Tiedrich

had not been provided with plaintiff's pre-accident treatment

records       and    attempted        to    use       the   records    to    question    him,

including a 2007 lumbar x-ray.                        The trial judge allowed limited




                                                  6                                  A-2884-12T4
questions      regarding         Dr.   Tiedrich's        knowledge        of    the    prior

treatment,        but   precluded      the   use       of     the    documents        or   his

examination of the earlier x-ray.

      Abdou and Lovato testified for defendants.                           Abdou was not

working      the    day    of     plaintiff's         fall.         She   described        the

restaurant's layout, including the six-table dining area, the

order counter, restrooms and the location of the two entrances.

Abdou   testified         both    customer       entrances      have      "big[,]     heavy"

floor mats "built into the tile of the floor" and a rubber floor

mat over those mats.              Another large rubber mat was located in

front of the soda machine.

      Lovato explained she arrived at the restaurant at 2 p.m.

and did not notice anything on the dining area floor.                                 During

her shift, she did not see any substances on the floor and no

one complained the floor was wet or greasy.                         The restaurant does

not   have    a    specific      policy   requiring         periodic       inspection       or

mopping of the dining area floor during the day.                           However, when

the floors are mopped, the mops are "color coded" and specific

to the kitchen and the dining area.                    On the day of the incident,

defendants'        records       contained       no    entry        recording    a     floor

inspection prior to plaintiff's accident.

      After learning of plaintiff's accident, Lovato attempted to

speak to plaintiff, and learned she was in the restroom.                                   In




                                             7                                      A-2884-12T4
accordance with company policy, Lovato apologized to plaintiff

and offered to compensate the family for their meal.

      Lovato visually examined the location where plaintiff fell

and   saw   no    water,   grease    or    other      substance    on    the    floor.

However, she acknowledged she did not physically touch the floor.

She maintained the floor in front of the ladies room was not

greasy or it would have been cleaned.                   She further stated she

could   survey     the    dining    area   floor      from   the   order      counter.

Lovato insisted there were no spills on the floor, stating if

water or grease was on the tile floor it is visible because "it

shines."        She also explained team members wipe the dining area

tables every half-hour and check the dining room and no problems

were reported.

      After the incident, "as a precautionary measure," Lovato

erected     a   caution    cone    outside     the    restroom,    which      remained

there until the restaurant closed.                   Immediately after speaking

with plaintiff, Lovato called the company hotline to report the

incident.1

      At the close of evidence, defendants moved for a directed

verdict, arguing plaintiff failed to identify the substance on

which she slipped and had not established "any notice to the

defendant[s]."       The trial judge denied the motion.

1
     The report was introduced                 into     evidence,       but    is    not
included in the record.


                                           8                                   A-2884-12T4
      During the charge conference, defendants objected to the

inclusion of a mode-of-operation liability charge.                    The judge

overruled the objection and included the doctrine in the jury's

instructions.

      The jury returned a verdict in favor of plaintiff, awarding

$250,000 and finding defendants 51% negligent.                  Final judgment

for plaintiff was entered in the amount of $138,643.09, which

included     $11,143.09     in   prejudgment      interest.       This    appeal

ensued.2     Defendants' request to stay enforcement of the judgment

pending appeal and file a supersedeas bond, Rule 2:9-5(a) and

(b), was granted.

                                       II.

      On appeal, defendants challenge the denial of the motion

for   directed   verdict,     the    inclusion    of   the   mode-of-operation

liability charge, and the preclusion of plaintiff's past medical

records during cross-examination.            We examine these issues.

                                       A.

      Defendants    contend      a   directed    verdict     should   have    been

granted at the close of evidence because plaintiff produced no

proof   of    defendants'     actual    or   constructive      notice    of    the




2
     Defendants timely electronically filed their notice of
appeal. An extension for filing was granted because the system
did not transmit the notices.


                                        9                                A-2884-12T4
dangerous       substance      on    the    premises,         or     even     exactly        what

substance was on the floor.                We disagree.

      In reviewing an order granting or denying a motion for

directed verdict, "we apply the same standard that governs the

trial courts."         Frugis v. Bracigliano, 177 N.J. 250, 269 (2003).

Motions for directed verdict at the close of trial, R. 4:40-1,

are governed by the same standard as motions for involuntary

dismissal, pursuant to Rule 4:37-2(b).                      As applied here, we must

accept    as    true    all    evidence        presented        by    plaintiff        and   the

legitimate inferences drawn therefrom, to determine whether the

proofs    are    sufficient         to   sustain       a    judgment        in   her    favor.

Monaco    v.    Hartz    Mountain        Corp.,       178    N.J.      401,      413   (2004).

"[T]he judicial function here is quite a mechanical one.                                     The

trial court is not concerned with the worth, nature or extent

(beyond     a    scintilla)         of   the        evidence,      but   only      with       its

existence,      viewed    most       favorably        to    the      party    opposing       the

motion."       Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

      Under Rule 4:37-2(b), a motion for a directed verdict is

granted only if, accepting the plaintiff's facts and considering

the   applicable        law,   "no       rational      jury     could       draw   from      the

evidence presented" that the plaintiff is entitled to relief.

Pitts v. Newark Bd. of Educ., 337 N.J. Super. 331, 340 (App. Div.

2001).     See also R. 4:37-2(b) ("[A] motion shall be denied if




                                               10                                      A-2884-12T4
the evidence, together with the legitimate inferences therefrom,

could   sustain    a    judgment    in        plaintiff's   favor.").      "[I]f

reasonable minds could differ, as to whether any negligence has

been shown, the motion should be denied."                   Bozza v. Vornado,

Inc., 42 N.J. 355, 357-58 (1964) (citing Bell v. E. Beef Co., 42

N.J. 126 (1964)).

    "In general, '[b]usiness owners owe to invitees a duty of

reasonable or due care to provide a safe environment for doing

that which is in the scope of the invitation.'"                    Stelluti v.

Casapenn Enters., LLC, 408 N.J. Super. 435, 446 (App. Div. 2009)

(quoting Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563

(2003)), aff'd 203 N.J. 286 (2010).                     "The duty of due care

requires a business owner to discover and eliminate dangerous

conditions, to maintain the premises in safe condition, and to

avoid   creating       conditions   that        would    render   the   premises

unsafe."   Nisivoccia, supra, 175 N.J. at 563 (citing O'Shea v. K.

Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997)).                    See

also Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243

(App. Div. 2013).         Such a duty is imposed because "business

owners 'are in the best position to control the risk of harm.'"

Hojnowski v. Vans Skate Park, 187 N.J. 323, 335 (2006) (quoting

Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517

(1997) (citations omitted)).




                                         11                             A-2884-12T4
    To     recover      for     injuries           suffered,     in    addition      to

establishing a defendant's duty of care, a plaintiff must also

establish the defendant had actual or constructive knowledge of

the dangerous condition that caused the accident. 3                      Nisivoccia,

supra,    175   N.J.   at     563    (citing        Brown   v.   Racquet      Club    of

Bricktown,      95   N.J.   280,      291        (1984)).      "An    inference      [of

negligence] can be drawn only from proved facts and cannot be

based upon a foundation of pure conjecture, speculation, surmise

or guess."      Long v. Landy, 35 N.J. 44, 54 (1961).

    "Proof of a fall alone would not be adequate to create an

inference of negligence . . . ."                     Simpson v. Duffy, 19 N.J.

Super. 339, 343 (App. Div.) (citations omitted), certif. denied,

10 N.J. 315 (1952).           This is because the mere existence of a

dangerous condition does not, in and of itself, establish actual

or constructive notice.             Arroyo, supra, 433 N.J. Super. at 243

(citing Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div.

1990)).    Liability for injuries caused by premises defects is

imposed when a plaintiff establishes a defendant knew or had the

reasonable      opportunity     to    discover        and   correct     the   defect.

Brown, supra, 95 N.J. at 291.               "Whether a reasonable opportunity

3
     A common law cause of action for negligence has four
elements: (1) a duty of care owed to plaintiff by defendant, (2)
a breach of that duty by defendant, (3) proximate cause, and (4)
actual damages. Brunson v. Affinity Fed. Credit Union, 199 N.J.
381, 400 (2009). The plaintiff bears the burden of proving each
of these elements. Ibid.


                                            12                                A-2884-12T4
to discover a defect existed will depend on both the character

and duration of the defect."             Ibid.       Consequently, a business

owner will be liable for injuries sustained by an invitee caused

by a dangerous condition on the premises "if . . . the dangerous

condition . . . existed for such a length of time that he should

have known of its presence."                  Bozza, supra, 42 N.J. at 359

(citations omitted).

       Defendants    argue     no      testimony      established      actual       or

constructive    notice    of     the   alleged      greasy    and/or   wet    floor,

defeating    plaintiff's       assertion       of    negligence.        Plaintiff

responds,     maintaining        the     facts       proved     defendants         had

constructive    notice    of     the    floor's      hazardous    condition        or,

alternatively, that notice is inferred because of the nature and

operation of the business itself.

       Following our review, we reject defendants' contention as

we conclude the proofs, when viewed in a light most favorable to

plaintiff, sufficiently evince defendants' constructive notice

of a wet or possibly greasy floor.                    We save for later our

discussion of the applicability of mode-of-operation liability

to these facts.

       Plaintiff's evidence showed she felt the floor where she

fell   and   found   it   wet,    greasy      and   slippery.       Further,       she

noticed the substance was transferred to her clothing.                             Her




                                         13                                  A-2884-12T4
daughter and son also experienced the slippery floor as they

went to plaintiff's aid.              Testimony demonstrated it was raining

heavily throughout the day, which circumstantially proves rain-

soaked customers entered the restaurant.                       Although mats were

placed at public entrances, no mats were on the floor in front

of the restrooms and plaintiff testified no mats were at the

entrance    on    the    day    of    the    accident.       Employees,       including

kitchen     employees     using       grease      for    frying,     used     the     same

restroom    facilities         as    did    the   customers,       through    a     common

entrance.        Defendants admitted they had no established policy

requiring     floors     to     be    inspected         periodically,       and     Lovato

confirmed    no    inspection        or     mopping     occurred    during    the     four

hours before plaintiff's accident.                 Finally, despite plaintiff's

fall, Lovato performed only a visual inspection of the site; she

did not physically touch the floor.

      Having considered the proofs as a whole, we determine they

are sufficient to allow a rational jury to evaluate whether the

condition of the floor existed for a period of time such that

had   defendants     exercised        reasonable        attention    to   inspect       the

floor's condition, defendants' employees would have learned of

the   danger       and    undertaken          remedial      action.          Therefore,

defendants' motion for a directed verdict was properly denied.




                                             14                                   A-2884-12T4
                                            B.

      Defendants next challenge the jury charge.                        Specifically,

defendants argue the judge failed to properly inform the jury of

plaintiff's obligation to prove notice of the alleged hazardous

condition.         Moreover, defendants maintain the judge erred in

directing        notice    was      unnecessary      if     defendants'          mode     of

operation        created   the    hazardous       condition.      We     conclude        the

court      misapplied      mode-of-operation         liability.             Because      the

charge     had    the    capacity    to   mislead     the    jury,     we    vacate      the

judgment, reverse the verdict, and remand for a new trial.                              Ruiz

v. Toys R Us, Inc., 269 N.J. Super. 607, 613 (App. Div. 1994).

      In     reviewing         challenges    to    jury     charges,        we     do    not

criticize small parts of the charge, but examine the charge "as

a whole" to determine whether it "'adequately conveys the law

and is unlikely to confuse or mislead the jury[.]'"                              Mogull v.

CB   Commercial         Real    Estate    Grp.,     162    N.J.   449,       464     (2000)

(quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).                                  The

charge must "'set forth an understandable and clear exposition

of the issues.'"               Ibid. (quoting Campos v. Firestone Tire &

Rubber Co., 98 N.J. 198, 210 (1984)).                     Reversal of a verdict is

warranted if an instruction lacks evidential support, is likely

to mislead the jury, and will cause an unjust result.                            Mandal v.

Port Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296 (App. Div.),




                                            15                                     A-2884-12T4
certif. denied, 216 N.J. 4 (2013).                    See also Finderne Mgmt. Co.,

Inc.    v.     Barrett,   402    N.J.      Super.     546,     576    (App.    Div.       2008)

("Erroneous       instructions        on    a      material        part   of   the    charge

are      . . . presumed to be reversible."), certif. denied, 199

N.J. 542 (2004).

       The law recognizes "certain distinctive instances" where

the nature of self-service business operations may result in

dangerous conditions to invitees.                   Arroyo, supra, 433 N.J. Super.

at     244.      "The     rule   is     a     very     limited       exception       to     the

traditional       rules    of    business          premises    liability.       .    .     .   "

Carroll v. N.J. Transit, 366 N.J. Super. 380, 389 (App. Div.

2004) (emphasis added).               When applicable, an injured plaintiff

is relieved of proving actual or constructive notice where, "as

a matter of probability, a dangerous condition is likely to

occur     as    the     result   of     the        nature     of    the   business,        the

property's condition, or a demonstrable pattern of conduct or

incidents."       Nisivoccia, supra, 175 N.J. at 563.

       The     mode-of-operation        doctrine        is     an    extension       of    the

general principle that when a proprietor creates a dangerous

condition, "notice, actual or constructive, of [that] dangerous

condition is not required . . . ."                      Craggan v. IKEA U.S., 332

N.J. Super. 53, 61 (App. Div. 2000) (citations omitted).                                    See

also Smith v. First Nat. Stores, 94 N.J. Super. 462, 466 (App.




                                              16                                     A-2884-12T4
Div.   1967)        ("Notice,    either       actual          or   constructive,       is   not

required       where     a    defendant           .     .     .    creates     a     dangerous

condition.").         More specifically, the mode-of-operation doctrine

provides:

              [W]hen a substantial risk of injury is
              inherent in a business operator's method of
              doing business, the plaintiff is relieved of
              showing actual or constructive notice of the
              dangerous condition.      The plaintiff is
              entitled to an inference of negligence,
              shifting the burden of production to 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. Thus,
              absent an explanation by defendants, a jury
              could find from the condition of the
              premises and the nature of the business that
              defendants did not exercise due care in
              operating the establishment, and that said
              negligent operation was the proximate cause
              of the injuries.    The ultimate burden of
              persuasion remains, of course, with the
              plaintiff.

              [Nisivoccia, supra,                 175       N.J. at 564-65
              (internal citations                 and       quotation marks
              omitted)].

See    also    Model    Jury     Charge       (Civil),            5.20F(11),    "Notice     Not

Required When Mode of Operation Creates Danger" (1970).

       Our    review     of     the    authority            applying    mode-of-operation

liability      does     not     support       a       conclusion       that    the    doctrine

applies merely because a defendant operates a type of business.

Rather,       the    unifying        factor       in        reported    opinions      is    the

negligence      results       from    the     business's            method    of   operation,



                                              17                                      A-2884-12T4
which     is     designed        to     allow    patrons     to      directly       handle

merchandise       or   products         without    intervention        from     business

employees, and entails an expectation of customer carelessness.

Craggan, supra, 332 N.J. Super. at 62.                     When mode-of-operation

liability has been applied, courts have examined whether the

defendant's       identified          business    operations      encompassed         self-

service facilities that led to a risk of harm to the plaintiff.

    In Bozza, the plaintiff's fall occurred when she slipped on

a "sticky," "slimy" substance, on the "littered" and "dirty"

floor,    that    also     contained       "drippings,       paper    straw     holders,

napkins    and    dirt"     at    the    counter    eating    area     in    the    "self-

service        cafeteria     type"        restaurant       located          within       the

defendant's store.          Bozza, supra, 42 N.J. at 358.                   Although not

invoking the phrase "mode of operation," the Court

               pointed out that spillage by customers was a
               hazard inherent in that type of business
               operation from which the owner is obliged to
               protect its patrons, and we held that when
               it is the nature of the business that
               creates   the   hazard,  the   inference  of
               negligence thus raised shifts the burden to
               the defendant to "negate the inference by
               submitting evidence of due care."

               [Nisivoccia, supra, 175 N.J. at 564 (quoting
               Bozza, supra, 42 N.J. at 360).]

The Supreme Court concluded:

               Thus, we believe that when plaintiff has
               shown that the circumstances were such as to
               create the reasonable probability that the



                                            18                                     A-2884-12T4
            dangerous condition would occur, he need not
            also prove actual or constructive notice of
            the specific condition.   Factors bearing on
            the existence of such reasonable probability
            would include the nature of the business,
            the general condition of the premises, [and]
            a pattern of conduct or recurring incidents.

            [Bozza, supra, 42 N.J. at 360).]

       The Wollerman       Court was the first to employ the phrase

"mode of operation" when discussing the risk of injury caused by

a business practice.            Wollerman, supra, 47 N.J. at 429.                 The

plaintiff was injured when she slipped on a loose string bean on

the    grocery   store     floor    where     the     store's    produce   displays

allowed customers to select items from the open bins.                       Id. at

428.      The    Court    found    these      facts    presented    a   sufficient

probability      "to   permit     such   an   inference     in    the   absence   of

evidence that [the] defendant did all that a reasonably prudent

man [or woman] would do in the light of the risk of injury his

operation entailed" because "greens . . . sold from open bins on

a self-service basis," creates "the likelihood that some will

fall or be dropped to the floor."              Id. at 429.       The Court stated:

            If the 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.

            [Ibid.       (citations omitted).]



                                         19                                A-2884-12T4
    The Supreme Court next reviewed the doctrine in Nisivoccia

and concluded the plaintiff was entitled to a mode-of-operation

instruction where a grocery store patron slipped on a grape near

the checkout area, rather than in the produce aisle.                    Nisivoccia,

supra, 175 N.J. at 561.        The Court held:

            A location within a store where a customer
            handles loose items during the process of
            selection and bagging from an open display
            obviously is a self-service area.  A mode-
            of-operation charge is appropriate when
            loose items that are reasonably likely to
            fall to the ground during customer or
            employee handling would create a dangerous
            condition.

                   . . . .

            [B]ecause of the way the grapes were
            packaged, they could easily have fallen out
            when accidentally tipped or upended in a
            shopping cart anywhere in the store.      The
            open and air-vented bags invited spillage.
            It was foreseeable then that loose grapes
            would fall to the ground near the checkout
            area, creating a dangerous condition for an
            unsuspecting customer walking in that area.

            [Id. at 565.]

    The     factual     scenarios     giving       rise   to   mode-of-operation

liability    examined    by    this   court    similarly       reflect   business

entities    that   allowed     customers      to    assume     tasks,   making    it

reasonably    foreseeable      customer     carelessness        would    create    a

dangerous condition.          Thus, the business was on notice of the

inherent risk created by its business practice, warranting an




                                       20                                 A-2884-12T4
inference of negligence with a corresponding shift in the burden

to the defendant-business to prove it acted with due care.

    In Craggan, the plaintiff, a contracted delivery driver,

became entangled on discarded string the defendant provided to

customers to secure merchandise removed from the store.          Craggan,

supra, 332 N.J. Super. at 58.      This court determined:

           [The] plaintiff was injured by conditions in
           the   loading   area  implemented  by   [the
           defendant] IKEA to facilitate removal of
           merchandise by patrons who had elected to
           transport merchandise in their own vehicles.
           IKEA's mode of operation to facilitate self-
           service removal of purchased items created a
           reasonable probability that the string would
           not be properly coiled in its container
           after each use, would accumulate in the
           loading area, and create a tripping hazard
           for anyone using the area.

           [Id. at 63.]

    In Ryder v. Ocean Cnty. Mall, 340 N.J. Super. 504 (App.

Div.),   certif.   denied,   170   N.J.   88   (2001),   we   reversed    a

directed verdict for the defendant in the plaintiff's action for

injuries suffered when she slipped on a spilled drink outside

the food court area while holiday shopping.        Id. at 507-08.

    We found the defendant did

           not restrict the carrying of, or consumption
           of, food and drink anywhere in the common
           areas of the Mall. Indeed, near the planter
           where [the plaintiff] fell, patrons are
           accustomed to sit and eat. . . . Given that
           mode of operation, the Mall becomes the
           functional equivalent of a cafeteria.     It



                                   21                            A-2884-12T4
            was not uncommon to get reports of one or
            more spills every day and more spills are
            reported on weekends and during the holiday
            season. The Mall, therefore, can reasonably
            be charged with notice that food and drink
            spills are likely to occur and do occur
            anywhere and at any time in the common areas.

            [Id. at 509.]

      In Znoski v. Shop-Rite Supermarkets, Inc., 122 N.J. Super.

243 (App. Div. 1973), this court rejected application of mode-

of-operation   liability    where   the   plaintiff   was    injured   by    a

youth who failed to control a metal shopping cart provided to

customers by the defendant.         Id. at 247-248.      We examined the

duty imposed on the defendant by furnishing the carts, but also

observed they did not create a hazardous method of business

operations, stating: "We are unable to say that a substantial

risk of injury is implicit, or inherent, in the furnishing of

shopping carts to patrons by a store proprietor.             Shopping carts

are   not   dangerous   instrumentalities,    and     they    are   uniquely

suitable for the purpose for which furnished."          Ibid.

      Understanding the parameters of mode-of-operation liability,

we emphasize the need to examine the facts of each individual

case.   Turning to the facts presented here, we first consider

the basis articulated by the trial judge to include a mode-of-

operation liability charge.




                                    22                              A-2884-12T4
     During    the     charge    conference,         plaintiff      argued       mode-of-

operation    liability       applied.    See   Model     Jury       Charges      (Civil),

5.20F(11), "Notice Not Required When Mode of Operation Creates

Danger,”    (1970).         Plaintiff    mentioned      the    floor       was    greasy,

grease was used in the restaurant's food preparation, and Gross

acknowledged grease "possibly" could have been tracked onto the

customer floor area by a kitchen employee on the way to the

restroom.          Plaintiff     next    suggested        defendants'            business

operation lacked a definitive policy requiring the floor to be

inspected     at     set    intervals.         The     judge     considered         these

assertions,        adding    defendants'       business       was     a    "fast     food

store       . . . and a lot of people tracking in and out."                             He

further found defendants' safety policy required the use of a

warning cone when it rained.            The judge concluded: "Putting that

all together I think there's [sic] enough facts to make the

inferences and the arguments to the jury."                          Accordingly, the

judge   applied        mode-of-operation          liability          and      overruled

defendants' contrary objection.4


4
     The   mode-of-operation            charge        included        in     the     jury
instructions was as follows:

                 A proprietor of business premises has
            the duty to provide a reasonably safe place
            for his or her customers.   If you find the
            premises     were     in     a     hazardous
            condition[,]      . . . whether caused by
            defendant[s'] employees or by others[,] such


                                         23                                      A-2884-12T4
    The conclusion that these facts invoked mode-of-operation

liability    was   unfounded   and    erroneous.    Mode-of-operation

liability does not apply merely because defendants operated a



            as . . . other 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[s] failed to take
            reasonable   precautions   to   prevent  the
            hazardous condition[] from arising or failed
            to take reasonable measures to discover and
            correct   such  hazardous   condition,  then
            defendant[s are] liable to plaintiff.

                 In   these    circumstances     defendant[s]
            would be liable even if defendant[s] and his
            or her employees did not have actual or
            constructive knowledge of the particular
            unsafe    condition[,]     which    caused    the
            accident and injury.     A proprietor business
            premises    has   the   duty    to    provide   a
            reasonably safe place for his or her
            customers.     If you find that a hazardous
            condition    was   likely    to    arise   in   a
            particular manner in which defendant[s']
            business was conducted and that defendant[s']
            employees probably were responsible either
            in creating such a hazardous condition or
            permitting it to arise or to continue,
            defendant[s are] liable to plaintiff if
            defendant[s] 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[s]
            would be liable even if defendant[s] and his
            or her employees did not have actual or
            constructive knowledge of the particular
            unsafe   condition[,]   which   caused   the
            accident and injury.


                                     24                         A-2884-12T4
fast food restaurant.                Rather, plaintiff must establish a causal

nexus between the fast food or other business operation and the

harm causing her injuries.

       Contrary         to     the    trial     judge's       conclusion,          defendants'

business      as    a     "fast-food         operation"       has    no     relationship       to

plaintiff's fall.              There is no link between the manner in which

the    business         was    conducted      and    the    alleged        hazard    plaintiff

slipped      on    or    its    source.        No    testimony        showed      the   alleged

wet/greasy floor was the result of a patron's spilled drink or

dropped food.            Further, there was no evidence the restaurant's

floor was ill-kept, strewn with debris or laden with overflowing

trash.

       Our dissenting colleague suggests we have narrowed mode-of-

operation         liability          to   apply      solely     "to        businesses       where

customers use self-service facilities."                        Post at __ (slip op. at

6).    Every reported opinion applying mode-of-operation liability

in    fact   examines          the    self-service         aspect     of    the    defendant's

business      operations,            which    was     found     to     have       created     the

hazardous condition, causing the plaintiff's injury.                                From this

we conclude the self-service mode-of-operation has resulted in

the doctrine's development.                   Again, mode-of-operation liability

results when a plaintiff suffers injury because the mode or

manner of the business operation creates the dangerous condition




                                                25                                      A-2884-12T4
on   the    premises.        This     concept    does     not    lead       to   broad

application.     Although mode-of-operation can cause a dangerous

condition, resulting in the owner's liability, not all dangerous

conditions arising in the operation of a business satisfy the

mode-of-operation theory of liability.               It is on this point that

we   part   company     with   the    views     expressed       in    the    dissent.

Therefore, mode-of-operation liability is distinguishable from

liability imposed when an owner creates or fails to remove a

known dangerous condition on premises, such as found in Smith,

supra, 94 N.J. Super. at 466.

      When determining whether mode-of-operation liability exists,

it is a mis-characterization to label a type of business, such

as the trial judge did here, as invoking the doctrine.                           Just

because a business is a fast-food restaurant or has self-service

facilities    does    not    prompt    mode-of-operation         liability.         To

trigger mode-of-operation liability, a plaintiff must identify

facts showing a nexus between the method or manner in which the

business is operated when extending products or services to the

public, and the harm alleged to have caused the plaintiff's

injury.

      The   additional      facts    identified      by   the   dissent      fail   to

establish    a   business      operation      that    created        an   inherently

dangerous risk warranting inclusion within the narrow scope of




                                        26                                   A-2884-12T4
mode-of-operation         liability.                Although      defendants'       restaurant

used oil to prepare fried food and spills occurred at times in

the kitchen area, these facts do not implicate customer conduct

in    the   operation         of    the    business,          which    is    the     rationale

underlying application of the mode-of-operation doctrine.                                      Even

after adding Gross's testimony, as cited by the dissent, post at

___    (slip      op.    at    1-2),       the        facts    at    best    raise        a    mere

possibility       that    the       greasy       floor        resulted      from    a     kitchen

employee.          The        comments         do     not     "create       the     reasonable

probability that the dangerous condition would occur[,]" Bozza,

supra, 42 N.J. at 360 (emphasis added)).                               See also Craggan,

supra,      332   N.J.    Super.          at   58      ("[The       defendant]'s        mode      of

operation to facilitate self-service removal of purchased items

created a reasonable probability that the string would not be

properly       coiled     in        its    container          after      each      use,       would

accumulate in the loading area, and create a tripping hazard for

anyone using the area." (emphasis added)).

       In    reaching         his    conclusion,            our     dissenting       colleague

relies solely on this court's holding in Smith, supra, 94 N.J.

Super. at 466.           We cannot abide such a rationale because the

facts in Smith are distinguishable from those here presented,

and, in concluding defendant created a dangerous condition on




                                                 27                                       A-2884-12T4
its property, the Smith court did not apply mode-of-operation

liability.

       In Smith, the plaintiff slipped on sawdust located on a

stairwell used to access the restroom.              Id. at 464.       "There was

evidence     that   prior    to   the    accident     sawdust      was     commonly

observed upon the stairway[.]"             Ibid.    Sawdust was used on the

floor of the meat department and in the produce department.                       Id.

at    465.    The   stairs   were    five    feet   from    the    store's       meat

department.     Id. at 464.       "[E]mployees used the stairway about

seven or eight times a day, or a total of 180 times a day for

all employees."      Id. at 465.

       We determined, "the evidence was such that a jury could

legitimately conclude that the greasy, slippery state of the

stairway in reasonable probability resulted from the tracking of

the sawdust upon the stairway -- not by customers -- but by

defendant's own employees."             Id. at 466.      Thus, the plaintiff

was   not    required   to   prove   the     defendant     had    notice    of    the

condition because its employees created the dangerous condition.

Ibid.    (citations omitted).

       In Smith, the issue before the trial court was whether the

defendant had constructive notice of the hazardous condition of

the stairway.       Smith, 94 N.J. Super. at 466.                The trial judge

applied the holding in Bozza, stating plaintiff's proofs created




                                        28                                 A-2884-12T4
"the    reasonable    probability     that   the   dangerous       condition   did

occur" from the defendant's conduct.               Ibid.        In our review of

this     determination,   we     expressed    "doubt       of    [the]   complete

applicability [of the doctrine] to the facts of this case."

Ibid.    We continued:

            In Bozza, the culpable conditions arose from
            the conduct of customers of defendant's
            restaurant and cafeteria.       The court in
            effect held that there inhered in the nature
            of   defendant's   operation   a   foreseeable
            hazard that the floor would become littered
            and   therefore   that   notice,   actual   or
            constructive, was not required.

                 Here,   as   we   have    indicated,   the
            evidence   was   such   that    a  jury   could
            legitimately   conclude    that   the   greasy,
            slippery state of the stairway in reasonable
            probability resulted from the tracking of
            the sawdust upon the stairway — not by
            customers — but by defendant's own employees.
            Notice, either actual or constructive, is
            not required where a defendant through its
            agents and employees creates a dangerous
            condition. Compare Torda v. Grand Union Co.,
            59 N.J. Super. 41 (App. Div. 1959), Plaga v.
            Foltis, 88 N.J. Super. 209, 212 (App. Div.
            1965).

            [Ibid.]

       It is important to note we did not find the conduct of the

defendant's employees in tracking sawdust on the stairway fit

within the narrow exception of mode-of-operation liability, even

though    Wollerman,    supra,   47   N.J.    at   426,    which    defined    the

doctrine, had been decided by the Court a year earlier.                  Rather,




                                       29                                A-2884-12T4
in     Smith,   like    this    case,   the       facts     presented    issues      of

negligence unrelated to defendants' mode of operation.

       This record is devoid of proof plaintiff fell on grease

caused by defendants' fry cook who used the restroom.                     Plaintiff

could not identify with any certainty the substance she thought

caused    her   fall,    alternating       her    description     of    the   foreign

substance between grease and water.                The evidence marshalled by

plaintiff may tend to show defendants had constructive notice

that the restaurant floor was greasy.                     Moreover, even if the

record     revealed     the    fry   cook    used     the    restroom     prior      to

plaintiff's fall and, in doing so, tracked grease onto the floor

area    leading   to    the    restroom,    the    mode-of-operation          doctrine

would not apply.        The doctrine's focus is not upon the conduct

of the establishment's employees.                Rather, the focus is upon the

business model that encourages self-service on the part of the

customer, which can reasonably and foreseeably create a risk of

harm to the customer.          Nisivoccia, 175 N.J. at 564.

       The specific facts identified by plaintiff and the judge

during the charge conference, as listed in the dissent, address

defendants' duty to guard against wet/greasy floors and invoke

defendants'     duty    to    periodically       inspect    the   customer     dining

area floor for foreign substances.                So too, defendants' alleged

inaction or ineffective conduct despite the heavy downpour may




                                        30                                    A-2884-12T4
tend to prove constructive notice of an unattended wet floor

(although we note, contrary to the judge's statement, there was

no testimony of a high volume of traffic in the restaurant and

plaintiff herself testified there was only one patron present).

    Unlike the precedents we have discussed, plaintiff cannot

identify defendants' business practice that created an implicit

or inherent danger likely to cause the resultant injury she

sustained.        See e.g., Znoski, supra, 122 N.J. Super. at 247

(holding     the    defendant's      provision          of   shopping       carts    to

customers does not trigger mode-of-operation liability in the

plaintiff's action for injury caused when a youth struck him

with a cart).

    This same analysis holds true if the foreign substance is

water.     The bulk of plaintiff's evidence suggested water from

the rain and possibly from her own wet shoes and clothing caused

her fall.      She produced no evidence showing, as a matter of

probability,       the   presence      of       rain     water     on      defendants'

restaurant floor was "likely to occur as a result of the nature

of the [defendants'] business, the property's condition or a

demonstrable       pattern   of    conduct      or     incidents."         Nisivoccia,

supra, 175 N.J. at 563.              That defendants failed to erect a

warning    sign     or   inspect    the        floor    supports     her    claim    of




                                          31                                  A-2884-12T4
negligence, but not mode-of-operation liability, making use of

that jury instruction error.

       We, therefore, decline to paint with the same broad brush

used    by   our    dissenting     colleague,    who   suggests   defendants'

actions or omissions in the course of operating a business must

be attributed to its mode-of-operation.             Post at __ (slip op. 4,

7-9).    Rather, mode-of-operation liability is applied only in

limited circumstances that are not demonstrated here.                       These

facts   at   hand    may   prove    defendants    breached     their   duty     to

plaintiff    or    that    defendants   had     constructive    notice     of   an

inherently dangerous condition, but they do not reflect a danger

posed by defendants' business operations.

       We also note the judge specifically rejected inclusion of

subpart 8 of the Model Charge addressing notice of a danger

located on a business property, which provides:

                  If you find that the land (or premises)
             was not in a reasonably safe condition, then,
             in order to recover, plaintiff must show
             either that the owner/occupier knew of the
             unsafe condition for a period of time prior
             to plaintiff’s injury sufficient to permit
             him/her in the exercise of reasonable care
             to have corrected it, or that the condition
             had existed for a sufficient length of time
             prior to plaintiff’s injury that in the
             exercise    of     reasonable    care    the
             owner/occupier should have discovered its
             existence and corrected it.




                                        32                               A-2884-12T4
               [Model Jury Charges (Civil), 5.20F8, "Notice
               of   Particular   Danger  as  Condition   of
               Liability" (1970).]

We     conclude      this       charge     properly       addresses     the    liability

question posed by the facts of this case.                        The jury should have

been    asked       to   consider        whether    plaintiff       proved    defendants

breached their duty to provide a safe premises for invitees by

failing to act when it knew or should have known of the danger

posed    by    the       rain    on   tile    floors.         The     omission   of     the

applicable legal standard from the jury instruction along with

the inclusion of mode-of-operation liability charge was error.

Because       the    jury    charge       used     here    was   clearly      capable    of

misleading or confusing the jury, we vacate the verdict and

remand for a new trial.

                                             C.

       Defendants'          final     challenge           attacks     the     evidentiary

determinations by the court excluding the use of plaintiff's

prior medical records on cross-examination.                           Defendants argue

the trial court erred in limiting cross-examination of plaintiff

and     her    expert       regarding      plaintiff's        prior    complaints       and

symptoms of back and neck pain. 5                  As noted below, this record is


5
     The record suggests some documents were marked for
identification at trial.   However, there is no differentiation
among the sixty-three pages of records included in defendants'
appendix from various providers treating plaintiff in 2002, 2004,
2005, 2006, 2007, 2009, and 2010. Many records are hand-written


                                             33                                  A-2884-12T4
                                                                                    6
insufficient to allow our definitive review of these issues.

However, because we have ordered a new trial, we include these

comments for guidance if the matter arises on retrial.

    At     trial,    plaintiff      described   her    injuries.     On     cross-

examination, she was asked whether she had made complaints of

pain or sought medical treatment for these same areas of her

body, prior to her fall.            She responded she did not remember.

Plaintiff was confronted with her deposition testimony, which

unequivocally       stated    she     had    never     sought     treatment       or

complained of pain in her legs, neck, or back or for tingling or

numbness    in    her     arms.      Defendants      then   proceeded      to    ask

plaintiff    if     she    sought    medical    treatment    in    2002,        after

complaining of back pain, which was met by a hearsay objection.




and indecipherable.   Treatments addressed varied conditions and
complaints, among which were 2004 cervical spine x-rays,
revealing "mild loss of intervertebral disc height" and "early
spur formation"; cervical nerve impingement; neck and "upper
back" pain, shoulder blade pain, left leg pain from bursitis;
left knee pain and sprain after a fall in November 2009; left
arm numbness; and a December 2010 fall down steps, resulting in
a diagnosis of lumbar stenosis and degenerative joint disease.
6
     Generally, our review of a trial court's evidentiary
rulings   determines   whether  the   judge  properly   exercised
discretion.   Villanueva v. Zimmer, 431 N.J. Super. 301, 310-11
(App. Div. 2013).    It is only when the trial court "'fails to
apply the proper test in analyzing the admissibility of
proffered evidence'" that our review is plenary. Ibid. (quoting
Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012)).


                                        34                                A-2884-12T4
      At   sidebar,   the   judge   rejected   defendants'   claim   the

documents were admissible as business records and sustained the

objection, stating:

                So you're asking that the [c]ourt let
           in medical records without — just because
           it's for impeachment purposes because you
           found some medical record that perhaps may
           contradict her credibility . . . .

                But just interpreting that the findings
           of the doctor and the history that he took
           is the same as the injuries she claims about
           today that's what you want the jury to make
           a credibility determination to find that
           she's not credible because some other doctor
           made note that she had perhaps similar
           complaints to similar body parts.    I don't
           think that's enough.   That's just too much
           hearsay.

                 . . . .

                I'm going to preclude you from using
           these notes to pick out another person's
           opinion without presenting the opinion of
           the doctor as to what the complaint resulted
           in after physical examination.

      Hearsay statements are inadmissible unless they fall within

a   designated   exception.     N.J.R.E.   802.     However,   N.J.R.E.

803(c)(6) excepts from the hearsay rule

           [a] statement contained in a writing or
           other record of acts, events, conditions,
           and, subject to Rule 808, opinions or
           diagnoses, made at or near the time of
           observation  by   a   person   with  actual
           knowledge or from information supplied by
           such a person, if the writing or other
           record was made in the regular course of
           business and it was the regular practice of



                                    35                         A-2884-12T4
            that business to make it, unless the sources
            of information or the method, purpose or
            circumstances of preparation indicate that
            it is not trustworthy.

The business records exception "routinely permits the admission

of medical records."      Konop, supra, 425 N.J. Super. at 403.             To

qualify under the business record exception to the hearsay rule:

            [T]he    proponent   must    satisfy    three
            conditions: "First, the writing must be made
            in the regular course of business.    Second,
            it must be prepared within a short time of
            the act, condition or event being described.
            Finally, the source of the information and
            the   method   and   circumstances   of   the
            preparation of the writing must justify
            allowing it into evidence."

            [Ibid. (quoting State v. Sweet, 195 N.J. 357,
            370 (2008)).]

   With regard to the reliability of the source of information,

this   court   has   stated     "'one    of    the   critical   circumstances

importing   reliability    is    the    fact    that   the   informant   whose

declaration is so recorded is under a duty, in the context of

the activity in which the record is made, to make an honest and

truthful report.'"     Id. at 404 (quoting State v. Lungsford, 167

N.J. Super. 296, 309 (App. Div. 1979)). "'There is a presumption,

absent contrary testimony, that those responsible for services

to the public will carry out their duties in a proper, careful

and prudent manner.'"         Ibid. (quoting State v. Matulewicz, 101

N.J. 27, 31 (1985)).




                                        36                           A-2884-12T4
      In   this      matter,    an    objection      was     made    to    defendants'

inquiry regarding plaintiff's prior medical treatment, after she

asserted she had had none.               That question, as posed, was not

objectionable.           Nor was the use of specific medical records to

attempt     to     refresh     plaintiff's        recollection        inappropriate,

particularly as she stated she could not remember.

      Courts       have     ruled      pre-accident        health         records     are

admissible to test a plaintiff's credibility.                         See Ocasio v.

Amtrak, 299 N.J. Super. 139, 155-59 (App. Div. 1997) (history of

drug abuse and other personal issues was relevant to credibility

of   damage      claim    arising    from     personal     injury);       Allendorf    v.

Kaiserman Enters., 266 N.J. Super. 662, 674 (App. Div. 1993)

(allowing introduction of "evidence that plaintiff had episodes

of passing out prior to the accident[, which] was admissible for

the purpose of impeaching the credibility of her testimony that

she was 'in perfect health' and had never had 'any problem with

blacking out' prior to the accident").                     "It has long been the

rule in New Jersey that the declarations of a patient as to his

[or her] condition, symptoms and feelings made to his [or her]

physician      for    the    purpose     of      diagnosis    and     treatment       are

admissible in evidence as an exception to the hearsay rule."

Cestero v. Ferrara, 57 N.J. 497, 501 (1971).                     See also N.J.R.E.

803(c)(4)     ("Statements       made       in   good    faith      for   purposes     of




                                            37                                 A-2884-12T4
medical diagnosis or treatment which describe medical history,

or   past   or     present         symptoms,      pain,     or   sensations"      are      "not

excluded by the hearsay rule[.]").

      On    this    record,         we   are     unable     to   discern      exactly      what

records or alleged statements attributed to plaintiff defendants

sought to admit.              First, no proffer was made identifying the

specific     records         to    be    used.        Defendants'       obligation       is   to

identify the specific record, or portion thereof, claimed to be

exempt and demonstrate its admissibility.                          We do not fault the

judge for rendering a general ruling when confronted for the

first   time      at    trial       with    voluminous         records    claimed        to   be

business records.             Second, the judge correctly identified the

prospect     of     inadmissible           hearsay         imbedded      within    possibly

admissible documents.               See N.J.R.E. 805.            If the issue arises on

remand, the subject may be best analyzed by motion presenting a

specific proffer and allowing a detailed review.

      The judge also limited the use of plaintiff's past medical

records     during      cross-examination              of    Dr.    Tiedrich.           Noting

plaintiff    had       not    provided      her       expert     with   any    pre-accident

treatment     records,            defendants      presented      Dr.    Tiedrich       with     a

September    6,     2007      x-ray      report       of   plaintiff's        lumbar    spine.

Plaintiff objected, maintaining the records were hearsay.




                                                 38                                    A-2884-12T4
       "Extensive     cross-examination            of    experts        is     generally

permitted,       subject    to    reasonable      limitations      imposed         by    the

trial court in its discretion."                Nowacki v. Cmty. Med. Ctr., 279

N.J. Super. 276, 290 (App. Div.), certif. denied, 141 N.J. 95

(1995).    Absent a showing of "clear error and prejudice[,]" this

court will not interfere with the trial court's exercise of

discretion.         Ibid.    (quoting      Glenpointe         Assocs.    v.       Twp.   of

Teaneck, 241 N.J. Super. 37, 54 (App. Div.), certif. denied, 122

N.J. 391 (1990)).

       In Allendorf, this court found the defendant established

the possibility of an alternative medical cause by confronting

plaintiff's expert on cross-examination with facts concerning

plaintiff's medical history.              Allendorf, supra, 266 N.J. Super.

at    672-74.       The    plaintiff     alleged        she   suffered        a   seizure

disorder after being injured by an elevator door.                            Id. at 667,

672.      The    defendant       asked   the     plaintiff's     neuropsychiatrist

whether information about the plaintiff's complaints of "passing

out" and severe chest pain prior to the accident would change

her    opinion    concerning      the    cause    of    the    plaintiff's        alleged

seizure disorder.          Id. at 673.          We held "[a] party seeking to

present evidence of a prior injury or condition relating to an

issue of medical causation must show that the evidence has some

'logical relationship to the issue in the case.'"                            Id. at 672




                                          39                                      A-2884-12T4
(quoting Paxton v. Misiuk, 34 N.J. 453, 460 (1961)).                              "[T]his

logical     relationship           generally     must        be        established       by

appropriate expert medical opinion."                 Ibid.

    Here,        the     judge's    prior      ruling       precluded         defendants'

inquiry    of    plaintiff       regarding     the   nature       of    her    2007    back

treatment       necessitating       x-rays.          Were    defendants         able     to

establish    the       logical   relationship        of   that    treatment       to   her

current complaints, the questions posed to the expert should

have been permitted.

    Following our review, we affirm the denial of defendants'

motion    for    a     directed     verdict.         However,          we   reverse     the

determination that mode-of-operation liability applied in this

case.     Accordingly, we vacate the verdict and remand for a new

trial.

    Affirmed in part; reversed in part; and remanded for a new

trial.




                                         40                                      A-2884-12T4
________________________________

HOFFMAN, J.A.D., concurring in part and dissenting in part.

    I   agree   with   the   majority   in   rejecting   defendants'

challenges to the trial court's rulings denying their motion for

a directed verdict, and limiting use of plaintiff's past medical

records during cross-examination; however, I part company with

my colleagues' finding of trial error in the inclusion of the

mode-of-operation liability charge.     Because I am satisfied the

record supports the trial judge's decision to provide the jury

with the mode-of-operation charge, I respectfully dissent.

    As part of plaintiff's case, counsel read into the record

the following deposition testimony from Cheryl Lynn Gross, an

employee who held a position equivalent to district manager for

eight KFC restaurants in New Jersey, including the one where

plaintiff's accident occurred:

         Q:     How is the chicken cooked?

         A:   In split vat fryers.       It's an open
         fryer. . . . And then you have pressure
         cookers and that's where the originals are
         cooked in the pressure cookers.

         Q:     Is there oil in the pressure cookers?

         A:     Yes.

         Q:     Is there oil in the split vat fryers?

         A:     Yes.
              . . . .

         Q:   Is the floor in the kitchen area tiled?

         A:   Yes.

         Q:   Are there any mats in the kitchen?

         A:   No

         Q:   Whatever goes on in the kitchen during
         the course of the day[,] if there is
         spillage or anything like that, it ends up
         on the floor?

         A:   Yes, and they mop it.

         Q:   How often do they mop the kitchen?

         A:   Maybe twice a day, three times a day
         when they get oil on the floor.

         Q:   And, if people are in the kitchen along
         the cook line and there is oil on the floor,
         they can get it on their footwear, correct?

         A:   Possibly.

              . . . .

         Q:   [What] if they have to go                  to the
         restroom or ladies room[,] they                 can be
         tracking it?

         A:   Possibly.

    Plaintiff's    counsel   also       provided   the    jury    with   the

following deposition testimony from Debbie Lovato, the assistant

manager who was present at the time of plaintiff's fall:

         Q:   Do you remember when the rain started
         and when it stopped without guessing?

         A:   Not really, no.



                                    2                              A-2884-12T4
Q:   You don't remember the       names   of   the
other people who were there?

A:   No, I do not.    We have people come and
go all the time.

     . . . .

Q:   You personally don't recall inspecting
the floor yourself from two o'clock up until
the time of the accident, correct?

A:   Correct.

Q:   Do you recall looking at or examining
anyone else or asking them if they inspected
the floor from the time you got on up until
the time of the accident?

     . . . .

A:   I don't remember.

     . . . .

Q:   Did you go down on your hands and knees
and inspect the floor to see what[,] if
anything[,] was on the floor?

A:   No.

Q:   Did anybody else?

A:   Not that I'm aware of, no.

     . . . .

Q:   Did you take a clean cloth or a rag or
anything and wipe the floor after the
incident to see what[,] if anything[,] was
on the floor?

A:   No, I did not.




                      3                              A-2884-12T4
       On   direct       examination,       Lovato    explained            the   routine        for

cleaning the floor in the kitchen where the chicken is cooked,

and the floor in the dining area, stating "we're color coded.

We have a blue mop for the kitchen and we have a yellow mop

that's strictly for the dining room . . . area."

       The record indicates that KFC employees, including kitchen

employees who attended to the open vat chicken fryers, used the

same   restroom          facilities    as     the   customers,         through       a    common
              1
entrance.           Despite this fact, defendants had no established

policy      requiring       periodic     inspections        of     the       floors,      either

generally or in the area between the kitchen and restroom doors.

Further,      Lovato       confirmed     no    inspection         or       mopping    occurred

during the four-hour period before plaintiff's accident.

       Indeed,       a   business     owner    has    a    duty       to    provide       a   safe

environment for its invitees.                 Nisivoccia v. Glass Gardens, Inc.,

175    N.J.       559,   563   (2003).        This    duty       of    care      "requires        a

business owner to discover and eliminate dangerous conditions,

to    maintain       the    premises     in    safe       condition,         and     to       avoid


1
   Although the record does not contain specific testimony
regarding restroom usage by KFC workers on the date of
plaintiff's accident, the restaurant had been open approximately
seven hours by the time of her fall, a sufficient period of time
to make it reasonably probable one or more workers would have
used the restroom during that period.      Moreover, the record
indicates the restrooms were checked every half hour when the
customer tables were wiped.



                                               4                                         A-2884-12T4
creating    conditions    that    would       render      the   premises   unsafe."

Ibid.      Because business operators are in the best position to

prevent the risk of harm to their customers, it is fair to hold

them responsible for injuries caused by their negligence.                          See

Hojnowski v. Vans Skate Park, 187 N.J. 323, 335 (2006).                        Unlike

the   customer,     "[t]he     operator       of    a    commercial     recreational

enterprise can inspect the premises for unsafe conditions, train

his   or   her   employees     with   regard        to    the   facility's    proper

operation, and regulate the types of activities permitted to

occur."     Ibid.

      Nevertheless, business owners are generally not liable for

injuries caused by dangerous conditions of which they were not

aware.      Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291

(1984).     Ordinarily, the burden is upon the plaintiff to prove

"that the defendant had actual or constructive knowledge of the

dangerous    condition    that    caused       the      accident."       Nisivoccia,

supra, 175 N.J. at 563.

      When the very "nature of the business . . . creates the

hazard,"     however,    the     "mode-of-operation             rule"   creates     an

inference of negligence and "shifts the burden to the defendant

to 'negate the inference by submitting evidence of due care.'"

Nisivoccia, supra, 175 N.J. at 564 (quoting Bozza v. Vornado,

Inc., 42 N.J. 355, 360 (1964)).                    This inference relieves the




                                          5                                  A-2884-12T4
plaintiff of proving the defendant had actual or constructive

notice   of   the   dangerous   condition    and    instead    requires    the

defendant to show it did "all that a reasonably prudent [person]

would do in light of the risk of injury [the mode-of-operation]

entailed."    Wollerman v. Grand Union Stores, Inc., 47 N.J. 426,

429 (1966).    If the defendant provides no explanation, the facts

presented by the plaintiff should allow a jury to find "from the

condition of the premises and the nature of the business that

[the   defendant]   did   not   exercise    due    care   in   operating   the

[business], and that said negligent operation was the proximate

cause of [the plaintiff's] injuries."             Bozza, supra, 42 N.J. at

359.

       I agree with the majority that mode-of-operation liability

does not apply merely because a defendant operates a fast food

restaurant.    Ante at ___ (slip op. at 17).           I further agree the

unifying factor in these cases is the defendants' method of

business operation, but I disagree with the assertion that mode-

of-operation liability is limited to businesses where customers

use self-service facilities.         Id. at 18.           Instead, mode-of-

operation liability applies where there is a "risk of injury




                                    6                                A-2884-12T4
inherent in the nature of the defendant's operation."                   Wollerman,

supra, 47 N.J. at 429-30.2

       Plaintiff relies on Smith v. First National Stores, Inc.,

94 N.J. Super. 462 (App. Div. 1967), to support her position

that she did not need to present evidence defendant had notice

of the substance on the floor on the day she fell because there

was    sufficient   evidence    for    a     jury   to   draw     a    legitimate

inference    that   the   greasy     floor    was   caused      by    defendants'

employees.    In Smith, the plaintiff was a supermarket patron who

slipped on an interior stairwell leading to a restroom.                      Id. at

464.    Evidence was introduced at trial indicating that the meat

department   "was     about   five   feet    away   from   the       foot   of    the

stairway."    Ibid.    "[P]rior to the accident sawdust was commonly

observed upon the stairway," which could have come from the meat

or produce departments because employees frequently used those

stairs to access the restroom.             Id. at 464-65.        Neither actual

nor constructive notice was deemed necessary because evidence


2
  Although I do not share the majority's view that limits mode-
of-operation liability to businesses that allow self-service,
ante at ___ (slip op. at 18), I note the record does reflect
that defendants' restaurant has a self-service soda fountain.
While I believe the presence of this fountain reasonably charged
defendants with notice that drink spills are likely to occur, I
concede the record does not implicate the fountain in
plaintiff's fall as she described the substance as "grease" and
her daughter used the term "greasy." Thus, the record does not
indicate a nexus between defendants' self-service soda fountain
and the substance that caused plaintiff's fall.


                                       7                                    A-2884-12T4
existed the defendant had created a dangerous condition "through

its agents and employees. . . ."                 Id. at 466.       Essentially, the

court    found     the    plaintiff      did     not   have   to   prove     that   the

defendant had notice of the dangerous condition because evidence

indicated the defendant itself created the hazard.                    Ibid.

      Here, the record indicates plaintiff's fall occurred about

five feet outside of the restroom entrance.                   Plaintiff testified

that her hands hit the floor and it felt like the floor had

grease     mixed     with     water     on    it.      Plaintiff's     son    Richard

testified, "I went over to her and I tried to pick her up but I

started to slip also.            So Adriana, my sister[,] ran over also

and tried to guide her up                    [but] [s]he started to slip[.]"

Richard and Adriana required the assistance of another patron in

the     restaurant       to   finally    get      their   mother    up.       Adriana

testified the floor "was wet and it felt like it was greasy.

I've actually worked in a restaurant as well and it just felt

like it was just greasy and it wasn't mopped properly."

      The record clearly shows that KFC was aware the kitchen

floor required special attention as evidenced by the practice of

having separate mops for use in the kitchen and dining areas. 3


3
  While color-coded mops demonstrated some effort by KFC to
address the problem posed by grease in the kitchen, it also
highlighted the difficulty in effectively cleaning grease so as
to prevent workers from tracking grease into the dining and
restroom areas.


                                             8                                A-2884-12T4
Because   workers   in   the   kitchen   used    the   same   restrooms    as

patrons of the restaurant, the area between the kitchen and the

restrooms could reasonably be expected to encounter grease from

the workers' shoes when they used the restroom facilities. 4             Just

as KFC had actual notice of the condition of the kitchen floor

and had taken steps to address it, we can infer that KFC had

constructive notice of the condition of the floor between the

kitchen and the restrooms as well.              It was "circumstantially

inferable" that the presence of the greasy substance described

by plaintiff and her children was "substantially attributable"

to the use of the restrooms by the workers in the kitchen.

Smith, supra, 94 N.J. Super. at 465.

     I do not find the majority's attempt to distinguish Smith

persuasive.   Ante at ___ (slip op. at 27-29).                In Smith, the

store manager "testified that the purpose of the sawdust around

the meat department was to 'keep the meat floor from a sliding

condition,'" and we concluded it was thus "inferable that such

sawdust would pick up meat or fat droppings."            Smith, supra, 94

N.J. Super. at 465.      Here, the testimony of defendants' district

manager acknowledged that oil on the floor could be tracked

outside the kitchen.      Although she tried to minimize the impact



4
  The properties and hazards posed by kitchen grease are common
knowledge and well within the ken of the average juror.


                                    9                               A-2884-12T4
of her responses by indicating "possibly," neither the jury nor

the     judge     was     obligated         to     accept      this    self-serving

qualification      when   it   flies       in    the   face   of   logic    and   human

experience.       Simply put, when persons get cooking oil or grease

on the soles of their shoes, one can reasonably expect they will

track that substance as they walk about, leaving residue.

       I see no significant distinction between the sawdust used

by the meat department in Smith and the multi-colored mops used

by    KFC.      Each   represented     a    well-intentioned,         but   far-from-

perfect, effort to address problems posed by the tracking of

substances that reach the floor in the preparation of food.                         The

sawdust used almost fifty years ago to address the problem posed

by a greasy, slippery floor may seem rudimentary today; however,

aside from the plaintiff's accident, there is no indication of

any other accidents in Smith, even though the stairway where the

accident occurred was used 180 times a day for all employees, as

well as an unstated number of patrons, like the plaintiff.                         Ibid.

While the sawdust may have been effective most of the time, the

evidence was, nevertheless, "such that a jury could legitimately

conclude that the greasy, slippery state of the stairway in

reasonable probability resulted from the tracking of the sawdust

upon the stairway — not by customers — but by defendant's own

employees."      Id. at 466.




                                           10                                 A-2884-12T4
      Similarly here, while the multi-colored mops may have been

effective most of the time, the evidence was such that a jury

could    conclude    with     reasonable        probability     that       the    greasy,

slippery floor outside the ladies restroom where plaintiff fell,

resulted from the tracking of oil or grease from KFC's kitchen

by defendants' own employees.                   Plaintiff described the floor

where she fell as "grease and water" and her daughter used the

term "greasy"; their testimony, if found credible by the jury,

was certainly competent to establish the dangerous condition of

the floor related to defendants' mode of operation.

      I believe the majority places undue emphasis upon the court

in    Smith    expressing          "some    doubt"     as      to    the     "complete

applicability"       of     mode-of-operation         liability       to    the     facts

presented there.           Id. at 466 (emphasis added).               Unfortunately,

the   court   in    Smith    did    not    provide    any     explanation        for   its

reservation.          Ibid.         Nevertheless,       such        language      hardly

constituted a complete rejection of the applicability of the

doctrine.     Instead, the court in Smith chose to reverse on the

narrow    basis     that    the    evidence      at   trial    could       support     the

conclusion that the slippery stairway resulted from the tracking

of sawdust by defendant's own employees.                Ibid.

      The     majority       interprets         Nisivoccia      as     indicating         a

limitation     of    the    mode-of-operation         doctrine       to    proprietors




                                           11                                    A-2884-12T4
whose business model "encourages self-service on the part of the

customer."       Ante at ___ (slip op. at 30).           While Nisivoccia did

involve    a    slip   and   fall   in   a    supermarket    on   grapes   loosely

packaged       for   sale,   Nisivoccia,      supra,   175   N.J.   at   562,    the

Supreme Court made no express statement limiting the mode-of-

operation rule to self-service businesses:

               The Model [Jury] Charge correctly states the
               rule that when a substantial risk of injury
               is inherent in a business operator's method
               of doing business, the plaintiff is relieved
               of showing actual or constructive notice of
               the dangerous condition.    The plaintiff is
               entitled to an inference of negligence,
               shifting the burden of production to 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."

               [Id. at 564-65 (quoting Wollerman, supra, 47
               N.J. at 429).]

Given the well-recognized risks to the health and safety of both

patrons and workers posed by a greasy, slippery floor, 5 I see no

sound reason to impose the majority's limitation on the mode-of-

operation doctrine.

5
   See, e.g., a recent study of fast food restaurants, which
highlighted the magnitude of the risk presented by walking on a
contaminated floor, finding it increased the rate of slipping by 14.6
times.   Santosh K. Verma et al., Rushing, distraction, walking on
contaminated   floors  and   risk  of   slipping   in  limited-service
restaurants: a case-crossing study, 68 Occupational & Envtl. Med., no
8, 551, 575-81 (2011) as reported in Liberty Mutual Research Institute
for Safety, Slips and Falls in Restaurants: Reducing Worker Risk, 14
Scientific Update: From Research to Reality, no 1, 1,       6 (2011),
http://www.libertymutualgroup.com.



                                         12                                A-2884-12T4
       Further,       the    equitable         considerations      that    underlie     the

mode-of-operation cases apply to the present case and justify

shifting the burden to KFC.                 After plaintiff fell, the assistant

store manager chose not to kneel down to inspect the floor where

plaintiff fell; neither she, nor any other employee, wiped the

floor    with     a    cloth        or   rag     to   see   what     may   have    caused

plaintiff's     fall.             Additionally,       KFC   failed   to    preserve     the

restaurant log book in which the assistant manager documented

the incident.

       "The customer is hardly in a position to know precisely

[what] was the neglect."                 Wollerman, supra, 47 N.J. at 429.              "It

is just, therefore, to place 'the onus of producing evidence

upon    the   party         who    is    possessed     of    superior      knowledge     or

opportunity for explanation of the causative circumstances.'"

Ibid. (quoting Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595,

606 (1958)).

       Because KFC's mode of operation allowed its workers in the

kitchen, including those workers who fry the chicken in cooking

oil in deep vat fryers and pressure cookers, to use the same

restrooms as restaurant patrons, 6 the burden was appropriately



6
  I acknowledge the economic benefit for restaurant operators if
they are able to have their workers use the same restrooms
provided for patrons.   Such "economic considerations, however,
cannot supplant the bedrock safety obligations and duties of a


                                                13                                A-2884-12T4
shifted to KFC to prove it took "reasonable measures to guard

against injuries to customers."              Craggan v. IKEA USA, 332 N.J.

Super. 53, 62 (App. Div. 2000)(quoting O'Shea, supra, 304 N.J.

Super. at 493).

    I   conclude    the    facts      before    the   jury    raised     legitimate

inferences that plaintiff's fall was caused by grease on the

floor related to defendants' mode of operation, where workers,

exposed to the oil and grease in the kitchen, were not provided

with a separate bathroom but were required to use the restrooms

provided    for   patrons.       By    its     verdict,     the   jury    concluded

defendants breached its duty to plaintiff to keep the premises

reasonably safe.

    Because I conclude the record supports the decision of the

trial judge to give the mode-of-operation charge, and the jury

charge on the whole accurately stated the law applicable to the

contested   evidence      in   this    case,    I   would    affirm      the     jury's

verdict.    See Mogull v. CB Commercial Real Estate Group, 162 N.J.

449, 464 (2000).




retail proprietor to a customer."    O'Shea v. K Mart Corp., 304
N.J. Super. 489, 495 (App. Div. 1997).




                                        14                                     A-2884-12T4
