Courts are using the "mode of operation" theory more and more on slip and fall cases. Mode of operation simply refers to the manner in which the merchandise in a retail store is displayed or packaged, and how that is relevant to any slip and fall injury that occurred inside the retail store. The phrase "mode of operation" was first coined to describe the application of a relatively new rule that extended liability to a storeowner if he or she failed to inspect or clean his or her store. Under this new extension, the injured party can establish liability (fault) by showing that the owner of the retail store or landowner had failed to conduct periodic inspections and the frequency required by the foreseeability of the risk that led to the injury. Keep in mind, the injured slip and fall victim must still prove that the storeowner failed to take reasonable care to prevent injury.

The court cases using the mode of operation theory shift the burden to the retail storeowner or landowner to prove that he or she did take adequate precautions to make his or her store safe by regular and frequent sweeping or inspections (like sweep logs).  Some courts have held that reasonable care to prevent customer injury could include the addition or alteration of floor surfaces which would not present a slipping hazard when we or contaminated.  To this end, the manner of operation and the type of articles on display are more important than the length of time the object had been on the floor in relation to the slip and fall injury.  Where the hazardous or dangerous condition is the result of a failure to  reasonably maintain the flooring or premises in general, this failure by the storeowner may be the basis for negligence and actual or constructive notice is not necessarily required!  The injured party may be excused from proving notice where the existence of the hazard is reasonably foreseeable!  This is a huge change in slip and fall injury cases indeed.