Opinion
DOCKET NO. A-3681-14T4
09-08-2016
LAUREN BOLCHUNE, Plaintiff-Appellant, v. SHOP-RITE SUPERMARKETS, INC., SPOTSWOOD INVESTMENTS, LLC, Defendant-Respondent
Neal M. Unger argued the cause for appellant (Neal M. Unger, P.C., attorneys; Mr. Unger and Justin LaPiana, on the briefs). Lawrence F. Citro argued the cause for respondent (Biancamano & Di Stefano, attorneys; Robin Sammer Behn, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Currier. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8536-11. Neal M. Unger argued the cause for appellant (Neal M. Unger, P.C., attorneys; Mr. Unger and Justin LaPiana, on the briefs). Lawrence F. Citro argued the cause for respondent (Biancamano & Di Stefano, attorneys; Robin Sammer Behn, on the brief). PER CURIAM
Plaintiff Lauren Bolchune appeals from a February 20, 2015 Law Division order granting summary judgment to defendant SRS, Shoprite of Spotswood, Store #106, and dismissing plaintiff's complaint in its entirety. Following our review of the record and applicable principles of law, we conclude that there is a genuine issue of material fact with regard to whether defendant had constructive notice of the alleged hazardous condition that caused plaintiff's injuries. Therefore, we reverse the trial court's grant of summary judgment and remand for trial.
We briefly summarize the relevant facts from the summary judgment record, granting all favorable inferences to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On March 31, 2011, plaintiff went shopping for groceries at the Shoprite store in Spotswood, which is owned and operated by defendant. Plaintiff was traversing a walkway in the front end of the store near the checkout aisles when she slipped on what she claims was a wet brown substance on the floor. She fell hard to the ground, sustaining injury to her left knee.
Plaintiff filed a personal injury action on December 8, 2011, asserting that defendant breached its duty of reasonable care by failing to maintain a safe premises or warn of the hazardous condition which caused plaintiff's fall. The discovery record is unclear how long the slippery substance had been on the floor of the walkway. Video camera footage provided by defendant only shows two minutes before, during, and after plaintiff's fall. Moreover, the footage does not indicate how or when the unidentified substance first became visible to store employees. The record contains no definitive evidence that the substance had been on the floor for only a short time, or that no store employees walked by or near the spill without addressing it.
Deposition testimony of defendant's employees indicates that wet, viscous, and sticky substances can get on the floor of the store from product spills and broken containers, including when employees are re-stocking shelves. Defendant's employees knew that spilled substances make the floor hazardous. One cashier alone estimated that he had put up caution signs for such occasions between twelve and fifteen times. Slip and fall accidents have occurred on defendant's premises multiple times in the past; at least two patrons have fallen and sustained broken ankles. In fact, the store manager acknowledged that he has filled out at least twenty incident reports of customer injuries.
At the time of plaintiff's fall, defendant had no written policies and procedures regarding inspection of the store for hazardous substances on the floor. It appears the principal responsibility for floor inspection was left to defendant's maintenance personnel; however, the record contains no evidence of any set time schedule for inspections to occur.
At the close of discovery, defendant filed a motion for summary judgment, asserting that it did not have actual or constructive notice of the condition. In response, plaintiff argued for application of the mode-of-operation doctrine, wherein a plaintiff is not required to prove that defendant had notice of the hazardous condition. See Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003).
The motion judge concluded that the mode-of-operation doctrine did not apply:
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 been cause by the plaintiff's injuries.
Now here, we don't know what this [wet brown substance] is. I've looked at the pictures. [It] appears to be some brown stains. Plaintiff testified that they were slippery.
Without knowing what they are, you can't establish a nexus to the defendant's mode of operation.
The motion judge also concluded that plaintiff failed to prove defendant had actual or constructive notice of the hazardous condition. Accordingly, he granted defendant's motion for summary judgment. This appeal followed.
When reviewing an order granting summary judgment, we "employ the same standard [of review] that governs the trial court." Henry v. New Jersey Dep't of Human Servs., 204 N.J. 320, 330 (2010) (quoting Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004)). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Absent any genuine factual disputes, we afford no deference to the trial court. We engage in de novo review of the decision whether a moving party is entitled to judgment as a matter of law. Henry, supra, 204 N.J. at 330 (citations omitted).
We recently reviewed the law of premises liability in the commercial context:
"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 (citations omitted)).
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. 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).
[Prioleau v. Kentucky Fried Chicken, Inc., 434 N.J. Super. 558, 587 (App. Div.) (footnote omitted), aff'd in part and modified in part, 223 N.J. 245 (2014).]
When a patron is injured by a dangerous condition, the business operator is liable "if he actually knew of the dangerous condition or if the condition had existed for such a length of time that [the business operator] should have known of its presence." Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964). In order to bypass the notice requirement in ordinary premises liability actions, a plaintiff may demonstrate that the defendant created a hazardous condition on its premises. See Smith v. First Nat. Stores, 94 N.J. Super. 462, 466 (App. Div. 1967) ("Notice, either actual or constructive, is not required where a defendant . . . creates a dangerous condition.").
Alternatively, pursuant to the mode-of-operation doctrine, a plaintiff can establish constructive notice of the hazard by showing a link between the hazard and the defendant's method of conducting business. The rule defines a supermarket's "mode of operation to include 'the customer's necessary handling of goods when checking out, an employee's handling of goods during checkout, and the characteristics of the goods themselves and the way in which they are packaged.'" Prioleau, supra, 223 N.J. at 260 (quoting Nisivoccia, supra, 175 N.J. at 566). The rule does not apply, however, where there is no evidence that the "plaintiff's accident . . . bears the slightest relationship to any self-service component of defendant's business." Id. at 264.
Although in Prioleau we concluded that the jury should not have received a mode-of-operation instruction, we also held that the plaintiff's proofs were "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." Prioleau, supra, 434 N.J. Super at 572. --------
In Nisivoccia, our Supreme Court applied the mode-of-operation doctrine when a grocery store patron slipped on a grape near the store's checkout area. 175 N.J. at 561-62. The Court found a nexus between the hazardous grape on the floor and the store's mode of operation, because the store "should have anticipated that careless handling of grapes was reasonably likely during customer checkout, creating a hazardous condition." Id. at 561.
Applying these principles, we first conclude that the trial judge correctly rejected plaintiff's attempt to invoke the mode-of-operation doctrine. In contrast to a case like Nisivoccia, the record here lacks the necessary facts to establish a nexus between the hazardous condition and the store's mode of operation. Plaintiff cannot clearly identify the substance that caused her fall. She described the substance as wet, brown and slippery, and located on the floor of the walkway connecting the grocery aisles to the cash registers. Without a clear description of what this substance was and how it ended up in the walkway near the checkout lines, it cannot be connected to defendant's mode of operation.
Although the mode-of-operation doctrine does not apply here, we nevertheless reverse because of the presence of genuine issues of material fact. Plaintiff has presented facts that there was a substance on the floor and she fell on it. She has a photograph of the substance and a description of it being wet and slippery. She alerted management of her fall and an incident report was prepared. The store manager denies there was anything on the ground. The video footage provided by defendant does not provide evidence to substantiate either party's assertions.
"A defendant has constructive knowledge [of a dangerous condition] when the condition existed 'for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.'" Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016) (quoting Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957)). Constructive knowledge can be "inferred in various ways," including the "characteristics of the dangerous condition giving rise to the slip and fall" or "eyewitness testimony" regarding the length of the condition's existence. Ibid. (citing Tua v. Modern Homes, Inc., 64 N.J. Super. 211, 220 (App. Div. 1960)). Typically, this is an issue of fact left for the jury's determination. See Prioleau, supra, 434 N.J. Super at 571 (concluding "the proofs, when viewed in a light most favorable to plaintiff, sufficiently evince defendants' constructive notice of a wet or possibly greasy floor").
Here, a genuine issue of material fact exists as to whether defendant had constructive notice of the spill before plaintiff's accident. Assuming the jury concludes that there was a foreign substance which caused plaintiff to slip and fall, the jury will then need to determine if the foreign substance was present long enough to "have resulted in knowledge and correction had the defendant been reasonably diligent." Troupe, supra, 443 N.J. Super. at 602. We therefore reverse the order granting summary judgment and remand to the trial court for further proceedings.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION