Opinion
DOCKET NO. A-1906-13T4
02-06-2015
ANTONIA MATTIA, Plaintiff-Appellant, v. SHOPRITE OF BROOKDALE, Defendant-Respondent.
Starr, Gern, Davison & Rubin, P.C., attorneys for appellant (Amos Gern, of counsel and on the brief; James A. Meszaros, on the brief). Carey & Grossi, attorneys for respondent (Charles B. Carey, of counsel and on the brief; Ashley A. Harris, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9965-11. Starr, Gern, Davison & Rubin, P.C., attorneys for appellant (Amos Gern, of counsel and on the brief; James A. Meszaros, on the brief). Carey & Grossi, attorneys for respondent (Charles B. Carey, of counsel and on the brief; Ashley A. Harris, on the brief). PER CURIAM
At approximately 7:00 a.m. on January 19, 2010, plaintiff Antonia Mattia walked into a supermarket owned by defendant, ShopRite of Brookdale. The store had just opened, and there were few other customers. Plaintiff walked through an area flanked on one side by a flower and potted plant stand, where customers could self-select cut flowers standing in pots of water. On the other side, approximately seven feet away at its closest point, was a self-service salad bar in which various items rested on crushed ice and which, at the time, was being re-stocked by one of defendant's employees.
Plaintiff suddenly slipped and fell approximately three feet from the salad bar, fracturing her coccyx. After hitting the floor, plaintiff discovered that she was sitting in a puddle of water, something confirmed by defendant's store manager, Marc Joaquin, who did not see plaintiff fall but arrived shortly thereafter. Plaintiff was ultimately taken to the hospital by ambulance.
Plaintiff filed a complaint seeking damages for personal injuries, alleging defendant negligently maintained the premises and failed to provide its business invitees with a reasonably safe place to shop. The case went to trial, and plaintiff and Joaquin were the only witnesses. Plaintiff requested that the judge provide the jury with Model Jury Charge (Civil), 5.20F(11), "Notice Not Required When Mode of Operation Creates Danger," (1970), which states:
The evidence at trial also included defendant's incident report, the report of the responding volunteer ambulance squad, video footage from the store camera and various medical reports. Although the video footage is not part of the appellate record, it is undisputed that it showed plaintiff's actual fall, as well as the presence of defendant's employee who was stocking the salad bar.
A proprietor of business premises has the duty to provide a reasonably safe place for his/her customers. If you find that the premises were in a hazardous condition, whether caused by defendant's employees or by others, such as customers, and if you find that said hazardous condition was likely to result from the particular manner in which defendant's business was conducted, and if you find that defendant failed to take reasonable measures to prevent the hazardous condition from arising or failed to take reasonable measures to discover and correct such hazardous condition, then defendant is liable to plaintiff.
In these circumstances defendant would be liable even if defendant and his/her employees did not have actual or constructive knowledge of the particular unsafe condition, which cause the accident and injury.
[Ibid.]
We do not include the alternative and additional charges contained as variations in the Model Charge.
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The judge carefully considered the request, reviewing a number of cases that have dealt with the issue. In the end, he reasoned that the "[w]ater . . . could have come from any source, not necessarily the self-service flower display. In addition, there was testimony that the area was more than [seven] feet from where the plaintiff fell." Finding that "plaintiff ha[d] made no showing that the self-service flower display was the source of the water upon which [she] slipped and fell[,]" the judge denied plaintiff's request to charge.
The jury returned a verdict of no cause of action in favor of defendant. Plaintiff moved for a new trial, asserting that the failure to provide the mode-of-operation charge resulted in a miscarriage of justice. See R. 4:49-1(a) ("The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law"). Relying upon our then recently-issued decision in Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238 (App. Div. 2013), the judge denied plaintiff's motion. This appeal followed.
Before us, plaintiff contends that the failure to provide the jury with a mode-of-operation charge was reversible error that requires the grant of a new trial. We agree, and therefore reverse and remand the matter to the Law Division for a new trial.
We begin by noting that "[o]ur law has long recognized the critical importance of accurate and precise instructions to the jury." Washington v. Perez, 219 N.J. 338, 350 (2014). "The jury charge 'should set forth an understandable and clear exposition of the issues.'" Mogull v. CB Commercial Real Estate Grp., 162 N.J. 449, 464 (2000) (quoting Campos v. Firestone Tire and Rubber Co., 98 N.J. 198, 210 (1984)).
"Business owners owe 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). "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." Ibid. Typically, "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." Prioleau v. Ky. Fried Chicken, Inc., 434 N.J. Super. 558, 570 (App. Div.), appeal filed, A-99-13 (Mar. 10, 2014).
Over the years, however, based upon "[e]quitable considerations," our courts have relieved a plaintiff of the need to prove actual or constructive knowledge "in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents." Nisivoccia, supra, 175 N.J. at 563. "In those circumstances, we have accorded the plaintiff an inference of negligence, imposing on the defendant the obligation to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard." Id. at 563-64. We briefly review some of those cases in which the Court has held that a defendant's "mode of operation" led to an inference of negligence.
In Bozza v. Vornado, Inc., 42 N.J. 355, 358 (1964), the plaintiff slipped and fell on a sticky substance on the floor of the "self-service cafeteria type" restaurant in the defendant's store. The holding in Bozza set the standard for applying the "mode of operation" doctrine.
When plaintiff has shown that the circumstances were such as to create the reasonable probability that the dangerous condition would occur, he need not also prove actual or constructive notice of the specific condition. Factors bearing on the existence of such reasonable probability would include the nature of the business, the general conditions of the premises, a pattern of conduct or recurring incidents. To relieve the plaintiff of the requirement of proving actual or constructive notice in such instances is to effect a more equitable balance in regard to the burdens of proof.
[Id. at 360 (citation omitted).]
In the seminal case of Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 428 (1966), the plaintiff slipped and fell on a green bean. The Court reversed our affirmance of the trial court's dismissal of plaintiff's complaint, concluding that
[w]hen green beans are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate; and this whether the risk arises from the act of his employee or of someone else he invites to the premises. The operator's vigilance must be commensurate with that risk.
[Id. at 429.]
In Nisivoccia, supra, 175 N.J. at 561, the plaintiff slipped and fell on some loose grapes near the checkout lanes of a supermarket. There was no proof as to how the grapes came to be on the floor or how long they were there. Ibid. However, the grapes were displayed in the produce area in open-top bags that permitted spillage. Ibid. The trial judge refused to give a mode-of-operation charge and directed a verdict in favor of the defendant. Ibid. The Court reversed our affirmance. Ibid.
After reviewing existing precedent, the Court noted
[a] location within a store where a customer handles loose items during the process of selection and bagging from an open display obviously is a self-service area. A mode-of-operation charge is appropriate when loose items that are reasonably likely to fall to the ground during customer or employee handling would create a dangerous condition.The Court reasoned that it was equally foreseeable that droppage and spillage would occur in the checkout area. Ibid. "'Mode of operation' here includes 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." Id. at 566.
[Id. at 565.]
The decision to provide a mode-of-operation charge is fact-sensitive. See Prioleau, supra, 434 N.J. Super. at 577 ("Understanding the parameters of mode-of-operation liability, we emphasize the need to examine the facts of each individual case"). In this case, the uncontested facts are that, shortly after the supermarket opened for business and with few if any customers in the store, plaintiff was walking in the vicinity of self-serve floral displays where flowers were stored in pots of water that were refreshed by defendant's employees in a sink on the premises. Plaintiff's fall occurred also in close proximity to the self-serve salad bar, where items were stored on ice. Both stations permitted defendant's patrons to serve themselves, circumstances likely to produce water spillage onto the floor.
Defendant argues that the mode-of-operation charge was properly denied because plaintiff could not identify the source of the water puddle. This was the trial judge's primary reason for denying plaintiff's request to charge.
However, in the cited cases that have applied the doctrine, the plaintiffs were unable to specifically identify the exact source of the slipping hazard. For example, in Bozza, supra, it was never established what exactly the plaintiff slipped on or how the "sticky substance" came to be on the floor. 42 N.J. at 358. Similarly, in Wollerman, supra, the plaintiff was shopping for green peppers when she slipped and fell on a stray string bean. 47 N.J. at 428. The Court cited three possible sources for the wayward string bean. Id. at 429. In Nisovaccia, supra, the Court expressly noted that "[t]he proofs did not show how the grapes came to be on the floor or how long they had been there." 175 N.J. at 561.
Bozza, which "first articulated" the mode-of-operation doctrine, "approved the rationale of Torda v. Grand Union Co., 59 N.J. Super. 41 (App. Div. 1959)." Nisovaccia, supra, 175 N.J. at 564. In Torda, the plaintiff was pushing a grocery cart through a supermarket "in the vicinity of a self-service vegetable rack or bin, when she slipped on something which she did not see, fell and was injured." 59 N.J. Super. at 42. Another customer, who was walking behind the plaintiff, testified that after the plaintiff got up from the floor, she could see "'a leaf of lettuce and a skid mark,'" and noted, "'[t]he floor was definitely wet.'" Id. at 43. On appeal from the involuntary dismissal of the complaint, we held that "[t]he evidence here was susceptible of an inference that the plaintiff came to her injury because there was water on the floor at a point immediately adjacent to an open bin in which defendant for its own purposes had seen fit to place a quantity of ice." Id. at 45. Furthermore, "the unexplained presence of water in close proximity to the bin inferentially presented a question of responsibility which defendant was called upon to answer and thus . . . a prima facie case was made out." Ibid. (first emphasis added).
In short, these cases make clear that a plaintiff need not specifically identify the source of the tripping hazard in order to obtain the benefit of a mode-of-operation charge. It is enough that a plaintiff produce sufficient proof permitting the jury to find the slipping hazard more likely than not arose out of the merchant's mode of operation. For the reasons already stated above, in this case, plaintiff adduced sufficient proof to warrant giving the jury charge.
Defendant also contends that our recent decisions in Prioleau and Arroyo, two cases in which we held that the mode-of-operation doctrine did not apply, support the judge's decision in this case not to give the charge. We disagree.
In Prioleau, it was raining heavily and the plaintiff tracked water into the fast-food restaurant she entered. 434 N.J. Super. at 564-65. As she proceeded directly to the restroom, the plaintiff slipped and fell on the floor, which she described as covered with "'grease mixed with water.'" Id. at 565. The trial judge provided a mode-of-operation charge, and the jury returned a verdict in favor of plaintiff. Id. at 568.
We reversed, id. at 572, reasoning,
Contrary to the trial judge's conclusion, defendants' business as a "fast-food operation" has no relationship to plaintiff's fall. There is no link between the manner in which the business was conducted and the alleged hazard plaintiff slipped on or its source. No testimony showed the alleged wet/greasy floor was the result of a patron's spilled drink or dropped food. Further, there was no evidence the restaurant's floor was ill-kept, strewn with debris or laden with overflowing trash."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 caused the plaintiff's injury." Id. at 579.
[Id. at 578-79.]
In Arroyo, the plaintiff left a convenience store and slipped on a discarded phone calling card. 433 N.J. Super. at 241. The cards were displayed near the cash register and store exit, and the plaintiff contended it was foreseeable that patrons would purchase the cards, use them immediately and discard them on the ground. Ibid. We affirmed the motion judge's grant of summary judgment noting "there [was] no genuine issue as to whether defendant had actual or constructive notice of the presence of the discarded phone card on the sidewalk." Id. at 243.
We also agreed that the plaintiff was not entitled to an inference of negligence by application of the mode-of-operation doctrine. Id. at 244. In particular, we noted that the plaintiff's fall occurred outside the store, and that the "retail chronology" was such that a cashier would have intervened between a customer taking the calling card off the rack and exiting the store. Id. at 246. "The nexus between the self-service rack and the eventual presence of the card on the sidewalk outside [was] extremely attenuated." Ibid.
Defendant argues that Prioleau and Arroyo support the trial judge's decision not to give the mode-of-operation charge in this case. It contends plaintiff was not entitled to the charge simply because she fell in a self-service area of the supermarket. While that assertion may be true, defendant ignores what we view to be the essential holding of both cases, i.e., that there must be a nexus between the merchant's mode of operation and the slipping hazard. In this case, for the reasons already mentioned, plaintiff proved such a nexus.
Lastly, we consider whether the failure to give the mode-of-operation charge requires reversal and a new trial. "Appellate review of a challenged jury instruction entails not only scrutiny of the charge itself, but an inquiry as to whether an erroneous charge may have affected the trial's result." Washington, supra, 219 N.J. at 351. We "'examine the charge as a whole, rather than focus on individual errors in isolation.'" Ibid. (quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)). "Reversible error . . . will not be found where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect." Fischer v. Canario, 14 3 N.J. 235, 254 (1996). However, "erroneous instructions on material points are presumed to be reversible error." Washington, supra, 219 N.J. at 351 (internal quotation marks omitted).
Among other things, in his summation defense counsel focused the jury's attention on the lack of proof regarding the source of the water puddle and defendant's knowledge of the puddle, stating,
Now do you know where the water came from in this case? Because I don't know where it came from and I don't think anybody does. I don't think there's been any proof and it's important because you have to know where the water came from. You have to if you're going to say that [defendant] did something wrong.
. . . Of course water shouldn't be on the floor but if we don't know how it got there, if we don't know how long it was there, then we don't know if anybody knew it was there, then there really isn't any negligence . . . . We don't have source, time, or notice. Those are key in establishing a case.
[(Emphasis added).]
The judge's instructions tracked the Model Jury Charge and included the following:
If you find that the premises were not in a reasonably safe condition, then in order to recover, the plaintiff must show either that the owner knew of the unsafe condition for a period of time prior to the plaintiff's injury sufficient to permit him, in the exercise of reasonable care, to have corrected it or, that the condition existed for a sufficient length of time prior to the plaintiff's injury, that in the exercise of reasonable care, the owner should have discovered its existence and corrected it.The judge then continued by defining actual and constructive notice.
Because plaintiff was entitled to a mode-of-operation charge, the instructions as given were improper. We have no way of knowing with certainty whether the no-cause verdict resulted from the lack of proof that defendant had actual or constructive notice of the water puddle on the floor, but we "may not assume that the jurors disregarded the improper instructions." Ruiz v. Toys "R" Us, Inc., 269 N.J. Super. 607, 613 (App. Div. 1994) (citing Leighton v. Sims, 248 N.J. Super. 577, 581 (App. Div. 1991)).
In Ruiz, the trial judge instructed the jury that the plaintiff needed to prove the defendant-store had actual or constructive notice of "the specific wet spot where [the] plaintiff slipped." Ibid. Although we recognized that the condition was not caused by the defendant's mode of operation and that the plaintiff needed to prove notice of the condition, we held "[i]t was a misstatement of law to require actual or constructive notice of the specific water spot, as [the defendant] was well aware that the roof leaked water onto the store's floor when it rained." Id. at 614. We therefore reversed. Id. at 616.
In this case, plaintiff was entitled to a mode-of-operation jury charge, but none was provided. Defendant focused the jury's attention on the lack of any evidence showing it knew or should have known of the puddle's existence. The jury was then told that an essential element of plaintiff's proof was that defendant had actual or constructive notice of the condition. Under these circumstances, we cannot conclude the failure to give a mode-of-operation charge was harmless error.
Reversed and remanded for a new trial. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION