Are Walmart Motorized Shopping Carts Inherently Dangerous? An Update on the Mode of Operation Rule

The Federal Court of the District of New Jersey has recently provided further insight to the mode of operations rule, this time in the context of a Walmart customer who was utilizing a motorized shopping cart in a store. In the case of Pena v. Walmart (D.N.J. Nov. 29, 2022), the motorized shopping cart was piled so high with products that the customer operating it could not see where she was going and ultimately drove the cart into Plaintiff Pena.

In her case against Walmart, Pena attempted to invoke the mode of operations rule. This rule requires that there be a connection between a self-service aspect of a defendant’s business and the cause of the alleged injury. Essentially, if a business engages in certain business models that can lead to foreseeable dangers, that business should affirmatively anticipate that danger. The classic example is fallen fruit at a grocery store. Since the store should theoretically understand that lose fruit handled by customers would fall, injured parties would not need to show that the store knew about the specific piece of fruit they fell on. However, this rule is not absolute and often the subject of many nuances, as we explained in our recent blog “Who Squashed the Grapes? How Product Packaging Affects Premises Liability and the Mode of Operation Rule.”

In the Walmart decision, the Federal Court focused on what harms are foreseeable for a business. The Court noted that, while shopping carts (normal or motorized) are meant to help customers retrieve products on their own, merely providing them is not inherently dangerous.  Further, the Court found no connection between a random customer running into another and the self-service aspect of Walmart’s business. Ultimately, the Court rejected Pena’s argument that overstuffed motorized carts are inherently more dangerous than normal ones and that Walmart should have foreseen the customer’s behavior. As the Court noted, every human activity carries some level of risk. Businesses cannot be expected to affirmatory anticipate every possible scenario and therefore require notice of specific dangers.

In conclusion, this case provides a perfect example of how defendants may benefit when the mode of operations rule is not applied. Plaintiffs, without the benefit of the rule, may not be able to sustain their burden to prove that the business establishment had notice of an alleged dangerous condition that caused their injury. Here, without the presumption of notice afforded by the mode of operations rule, Pena was unable to prove that Walmart was aware of the danger posed by an unknown customer driving an over-stacked cart.

Based on this decision, business owners can feel confident in providing carts, baskets, and motorized carts to customers without affirmatively monitoring for poor customer behavior. However, if made aware of a customer mishandling these items or driving carts with an obscured view, they should address the issue immediately.  

If you have any questions about the mode of operation rule and its applicability to premises liability matters, contact Amelia R. Lyte or Joseph V. Leone or call as at 732-545-4717.