A tort is generally defined as a civil wrong not arising from a breach of contract which is a breach of a legal duty that proximately causes harm or injury to another (Miller & Jentz, 2000). Negligence occurs when there is a failure to exercise the standard of care that a reasonable person would exercise in similar circumstances Miller & Jentz (2000). In the case of Tom v. S.S. Kresge Co., Inc. 633 P.2d 439 (Ariz. App. 1981), Mae Tom sued Kresge for negligence after she slipped and fell on a clear substance that was on the floor. While no determination was made as to what the substance was, Kresge had a policy of selling soft drinks in the store and allowing customers to walk around with their drinks. Tom therefore alleged at trial that Kresge was negligent and was responsible for her injuries, for which she sought to recover damages.
The issue in this case is whether or not Kresge exercised a standard of care regarding the condition of its premises which would be exercised by a reasonable person under similar circumstances. Because this is the case, Kresge is responsible for maintaining its facilities in a manner that will not facilitate accidents such as that involving Ms. Tom.
Applying what is known as the mode-of-operation rule to the case as was done in Gump v. Wal-Mart Stores, Inc. and KBRL, Inc., No. 21670 Third Circuit, Hawaii, 1999, one must conclude that Tom has standing and should recover. The mode-of-operation rule was initiated in the self-service food market with regard to slip-and-fall cases. The courts have recognized either explicitly or implicitly that by utilizing the self-service marketing method, the store owner or business proprietor is creating the dangerous condition and that therefore the owner or proprietor is deemed to have actual notice of the condition. This means that no proof of notice by the plaintiff is necessary.
This rule as discussed in Gump, spread to big-box retailers fr...