Opinion
DOCKET NO. A-6100-12T2
12-12-2014
ALLAN NOVICK, Plaintiff-Appellant, v. GLASS GARDENS, INC., Defendant-Respondent.
Allan Novick, appellant pro se. Carey & Grossi, attorneys for respondent (Charles B. Carey, of counsel; Ashley A. Harris, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-4735-11. Allan Novick, appellant pro se. Carey & Grossi, attorneys for respondent (Charles B. Carey, of counsel; Ashley A. Harris, on the brief). PER CURIAM
Plaintiff Allan Novick appeals from the order of the Law Division granting defendant Glass Gardens, Inc.'s motion for summary judgment and dismissing his personal injury complaint with prejudice. We affirm.
Plaintiff filed suit against defendant alleging he slipped and fell on June 16, 2011, while shopping at the ShopRite Supermarket owned by defendant in the City of Linden. Plaintiff described how the accident occurred in his answers to defendant's interrogatories:
The accident occurred on June 16, 2011 at approximately 11:00 a.m. The accident occurred in the area at and/or near a certain checkout aisle of the aforesaid supermarket premises located at Aviation Plaza . . . , Linden, County of Union, State of New Jersey, known as "ShopRite." The weather was dry and clear. The accident occurred when the plaintiff slipped on the wet surface of the floor at and/or near a certain checkout aisle and fell onto his right knee.
The customer incident report prepared by ShopRite's assistant manager at the time of the accident noted "[a] small amount of milk on [the] floor caused by customer on line at register #11 that had a gallon of milk on it's [sic] side on the bottom of the cart leaking onto the floor." The assistant manager also certified that the first time he noticed the unidentified customer's milk carton was when he was assisting plaintiff after the fall.
In her letter-opinion, the motion judge noted: "A surveillance video of the incident shows that a carton of milk was lying sideways on an unidentified customer's cart not far ahead of the location where the plaintiff slipped and fell." The appellate record before us does not include a copy of this video recording.
After the discovery period for this type of litigation ended, defendant filed a motion for summary judgment, arguing plaintiff failed to produce any evidence that defendant had any prior knowledge of the wet substance that caused him to slip and fall. Stated differently, plaintiff failed to present any evidence that defendant: (1) had either actual or constructive knowledge of the existence of this dangerous condition; and (2) failed to take reasonable measures to address and correct this dangerous condition. Defendant argued before the Law Division that without such evidence, plaintiff could not meet his burden of establishing a prima facie case of negligence as a matter of law.
Although plaintiff has filed this appeal pro se, he was represented by counsel when defendant's summary judgment motion was argued before the Law Division. Relying on the mode of operation doctrine, plaintiff's counsel argued that when "the nature of [defendant's] business creates the hazard, the inference of negligence exits and it shifts the burden to the defendant to submit evidence of due care."
After considering the arguments of counsel, Judge Lisa F. Chrystal granted defendant's motion for summary judgment and dismissed plaintiff's cause of action with prejudice. Judge Chrystal explained her ruling in a detailed letter-opinion dated June 28, 2013. On appeal, plaintiff argues Judge Chrystal erred in granting defendant's motion for summary judgment because there are material issues of fact in dispute, defendant did not provide evidence establishing it did not have notice of the wet floor before the accident occurred, and, alternatively, defendant had actual or constructive notice "of the spill."
In deciding whether summary judgment was either properly granted or denied, "'we apply the same standard governing the trial court—we view the evidence in the light most favorable to the non-moving party.'" Gormley v. Wood-El, 218 N.J. 72, 86 (2014) (quoting Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)). Under Rule 4:46-2(c), a motion for summary judgment must be granted when "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." Even if the pleadings raise an issue of material fact, summary judgment is appropriate when all other documents show that there are no genuine issues of material fact in dispute. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).
In order to determine whether there are genuine issues of material facts in dispute, we must determine whether the evidence "in the light most favorable to the non-moving party, [is] sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A common law cause of action for negligence has four elements: (1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages. Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 400 (2009). The plaintiff bears the burden of proving each of these elements. Ibid. In the area of law known as premise liability law, "[b]usiness 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). 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. Negligence must be inferred only from competent evidence and established facts, however, and cannot be based upon "conjecture, speculation, surmise or guess." Long v. Landy, 35 N.J. 44, 54 (1961).
Here, although unartfully stated, plaintiff seeks to meet his burden of proof by raising arguments essentially predicated on the mode of operation doctrine. As we recently explained, "[t]he mode-of-operation doctrine is an extension of the general principle that when a proprietor creates a dangerous condition, 'notice, actual or constructive, of that dangerous condition is not required.'" Prioleau v. Kentucky Fried Chicken, Inc., 434 N.J. Super. 558, 573 (App. Div. 2014). Our Supreme Court has held that
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.
[Nisivoccia, supra, 175 N.J. at 565].
The salient, undisputed facts of this case do not present a rational basis to apply the mode of operation doctrine to relieve plaintiff of his evidential burden of establishing defendant had actual or constructive knowledge of the milk prior to his slip and fall. We thus affirm substantially for the reasons expressed by Judge Chrystal in her letter-opinion dated June 28, 2013.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION