Opinion
DOCKET NO. A-1216-13T3
04-02-2015
VERONICA GILMORE, Plaintiff-Appellant, v. NATIONWIDE BOWLING CORP. and BOWLER CITY LANES, Defendants-Respondents.
Daniel R. Bevere argued the cause for appellant (Piro, Zinna, Cifelli, Paris & Genitempo, attorneys; Mr. Bevere, of counsel and on the brief). James J. O'Hara argued the cause for respondents (Graham Curtin, attorneys; Mr. O'Hara, of counsel; Thomas J. Coffey and Mr. O'Hara, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9511-11. Daniel R. Bevere argued the cause for appellant (Piro, Zinna, Cifelli, Paris & Genitempo, attorneys; Mr. Bevere, of counsel and on the brief). James J. O'Hara argued the cause for respondents (Graham Curtin, attorneys; Mr. O'Hara, of counsel; Thomas J. Coffey and Mr. O'Hara, on the brief). PER CURIAM
Plaintiff Veronica Gilmore appeals from a Law Division order granting summary judgment to defendants Nationwide Bowling Corp. and Bowler City Lanes and dismissing plaintiff's personal injury complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.
I.
We view the facts from the record below in the light favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). While bowling at Bowler City Lanes with some friends on New Year's Eve, December 31, 2009, plaintiff fractured her wrist as a result of a slip and fall after she released the ball and took a step back. Plaintiff did not notice anything on the floor before she approached the bowling lane but noticed her clothing was "slimy damp" from an unknown substance once she got up from her fall.
On this particular evening, the bowling alley was full to capacity. The alley's owner, Nationwide Bowling Corp., sold food and beverages to its patrons. According to the alley's safety rules, food and beverages were only to be kept and consumed at the table area where patrons sat waiting to bowl, and not in the lane area where the bowling took place. There were no signs advising of the restriction. Patrons were made aware of the restriction through a notation on the lane card provided to patrons when they purchased their lane before bowling. Bowling alley staff would also tell patrons of the rules if staff observed any violations.
About one hour prior to plaintiff's fall, a patron bowling with a neighboring group walked across and spilled a drink in the area where plaintiff's group was bowling. Plaintiff could not recall whether the spill occurred directly on her lane, the approach to her lane, more towards her group, or the other group. Shortly thereafter, a porter, one of three on duty that evening, cleaned up the spill. After the lane was cleaned, plaintiff and her group continued to bowl. Yet, according to plaintiff, bowling alley staff still failed before and after her fall, to enforce the safety policy as patrons with cups walked back and forth across her group's lane. Plaintiff also contended that when she returned from the bathroom prior to her fall, her friends told her that another patron dropped ice on the floor. The record does not reveal where the ice was spilled.
Following completion of discovery, defendants filed a summary judgment motion. At the conclusion of oral argument, the motion judge issued a bench decision granting summary judgment and dismissing plaintiff's complaint with prejudice. The judge stated that in giving all inferences in favor of plaintiff, even if the bowling alley was a "pigsty," plaintiff presented no facts indicating she fell due to a substance that was negligently left on the floor.
On appeal, plaintiff argues the motion court did not view the evidence in the light most favorable to plaintiff, and erred in ruling that a rational fact finder could not find that plaintiff slipped and fell due to a foreign substance on the floor because defendants allowed beverages in the area of the accident. Plaintiff furthers contends that she offered evidence that defendants had actual or constructive notice of the foreign substance and failed to remove it to prevent plaintiff's accident.
II.
We review a trial court's decision to grant or deny summary judgment de novo, Heyert v. Taddese, 431 N.J. Super. 388, 411 (App. Div. 2013), utilizing "'the same standard [of review] that governs the trial court.'" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010)). Because our review is de novo, we "accord no deference to the trial judge's conclusions on issues of law." Depolink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013).
We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). If there are materially disputed facts, the motion for summary judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003).
Next, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540; see also R. 4:46-2(c).
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387 N.J. Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
In this case, plaintiff contends that defendants were negligent in keeping the bowling lane free of foreign substances which caused her to slip and fall and fracture her wrist. In a negligence action, a plaintiff bears the burden of proving four elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages. Brunson v. Affinity Federal Credit Union, 199 N.J. 381, 400 (2009)(citing Polzo v. County of Essex, 196 N.J. 569, 584 (2008); quoting Weinberg v. Dinger, 106 N.J. 469, 484 (1987)(internal quotation omitted)). The mere occurrence of an incident causing an injury is not alone sufficient to impose liability. Long v. Landy, 35 N.J. 44, 54 (1961). The plaintiff must establish facts proving negligence, not inferences "based upon a foundation of pure conjecture, speculation, surmise or guess." Ibid.
In the context of a business establishment, the owner "owe[s] to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation." 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 creating conditions that would render the premises unsafe." Ibid. Ordinarily, a plaintiff must also establish defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Ibid. "A proprietor generally is not liable for injuries caused by defects of which he had no actual or implied knowledge or notice, and no reasonable opportunity to discover. Whether a reasonable opportunity to discover a defect existed will depend on both the character and the duration of the defect." Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984) (internal citations and quotation marks omitted).
Applying these principles to this case, we agree with the motion judge that accepting plaintiff's contention that she fell on a foreign substance does not establish a prima facie case of liability against defendants. Defendants owed plaintiff, a business invitee, a duty to keep the bowling lane free of foreign substances in the lane area where she bowled. However, plaintiff does not establish a breach of that duty. While plaintiff paints a picture of a festive and chaotic New Year's Eve party at defendants' bowling alley, she presents no facts to support her argument that she slipped on a foreign substance that was spilled on the floor by one or more messy patrons drinking or carrying a beverage in the prohibited area of the bowling alley. Plaintiff offers no proof what she slipped on, merely asserting the foreign substance was a liquid. She fails to factually link another bowler's spilled drink, cleaned up an hour before she fell, as the cause of her accident. She likewise offers no evidence that the spill of ice was the cause of her fall. Importantly, she is not even certain that either spill occurred in the area of her fall.
Plaintiff suggests defendants had notice of the hazardous conditions on the lanes due to the prior clean up and they did not enforce their safety policy resulting in beverages and ice being repeatedly spilled causing liquid to be tracked back and forth across the lanes, including the one where she was bowling. But the mere occurrence of prior spills does not prove that defendants were negligent in allowing a foreign substance on plaintiff's bowling lane and such negligence was a proximate cause of plaintiff's fall. Plaintiff offers no proof that defendants had a reasonable opportunity to discover and clean up the substance that allegedly caused her fall. Simply put, plaintiff is speculating how the foreign substance got on the floor, that defendants should have known of its existence, and that defendants had a reasonable opportunity to clean it up prior to her mishap. This is insufficient to survive defendants' summary judgment motion dismissing her complaint.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION