Summary
finding prior mode of operation cases "all involved a direct causal link between the object slipped on and its known source, the latter originating in a particular circumstance, manner or method by which defendant operated its business"
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DOCKET NO. A-4241-11T2
02-15-2013
MARIA A. CASHOUR, Plaintiff-Appellant, v. DOVER PARKADE, LLC, PARAMOUNT REALTY SERVICES, INC., RBL CONSTRUCTION, LLC, DOLLAR TREE, Defendants-Respondents.
Gill and Chamas, LLC, attorneys for appellant (Paul K. Caliendo, on the brief). Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for respondents Dover Parkade, LLC, and Paramount Realty Services, Inc. (Joseph A. Gallo, of counsel and on the brief; John W. Williams, on the brief). Zirulnik, Sherlock & Demille, attorneys for respondent RBL Construction, LLC (Denise L. Werner, on the brief). Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP, attorneys for respondent Dollar Tree (Brian L. Calistri and Anthony J. Kiefner, of counsel and on the brief; Michael P. Avila, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2074-10.
Gill and Chamas, LLC, attorneys for appellant (Paul K. Caliendo, on the brief).
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, attorneys for respondents Dover Parkade, LLC, and Paramount Realty Services, Inc. (Joseph A. Gallo, of counsel and on the brief; John W. Williams, on the brief).
Zirulnik, Sherlock & Demille, attorneys for respondent RBL Construction, LLC (Denise L. Werner, on the brief).
Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP, attorneys for respondent Dollar Tree (Brian L. Calistri and Anthony J. Kiefner, of counsel and on the brief; Michael P. Avila, on the brief). PER CURIAM
Plaintiff Maria Cashour appeals from the February 17, 2012 summary judgment dismissal of her slip and fall negligence lawsuit against defendants Dover Parkade, LLC/Paramount Realty Services, Inc. (collectively Dover Paramount), RBL Construction, LLC (RBL) and Dollar Tree Stores, Inc., and from the March 30, 2012 order denying her motion for reconsideration. We affirm.
At around 5:30 p.m. on December 23, 2008, plaintiff went to the Tri-City Plaza in Toms River to shop at the Dollar Tree store. Plaintiff exited her vehicle but before entering the store, she unsuccessfully tried to throw away a gum wrapper at a nearby garbage can that was already overflowing with trash. According to plaintiff, there was garbage all over the walkway.
Plaintiff entered the Dollar Tree store but was unable to locate what she wanted so she left. She took about six steps on the sidewalk towards the curb and then felt herself slipping off the curb, about twelve feet from the garbage can she initially had approached. According to plaintiff, "When I approached the curb and my right foot was going down, I realized my left was going too fast. I looked down and I saw something white on my heel of my boot." She added, "So I quickly looked down and had seen something had attached to my left heel of my boot, something white . . . ." Someone who came to her aid said it was a plastic bag that had caught her foot. Plaintiff fractured her right wrist in the fall, requiring surgery.
Dover Paramount owns and manages the Plaza. The Dollar Tree store is a commercial tenant of the Plaza. RBL was contracted to provide trash removal services at the Plaza, specifically to empty the trash containers once a day, during the evening hours when the Plaza was closed.
According to plaintiff, upon arrival she noticed, as she had on previous occasions, the area to be "messy," with trash cans overflowing and garbage spilling out onto the ground, although upon her departure from the Dollar Tree, she made no such observation. Richard Boker, the sole proprietor of RBL, described the usual condition of the premises:
Yes, I can say that there's been times when I got there at night that the receptacles were full. It's a busy shopping center and what happens a lot of times, people take their garbage out of their car and they think it's a public container for their garbage and they would fill these containers up with newspapers and what have you. It wasn't always garbage or debris from the center, it was people using these as their own personal garbage cans. So you would see empty cans and then all of a sudden there would be one overflowing and that tells me -- I would go through it and I would see newspapers, I would see cases of beer; what have you. So it doesn't surprise me to seeBoker added that he was aware that the Plaza was busier in December for the holidays, increasing the amount of garbage in the area, as evidenced in a photograph of the Plaza taken the next morning, Christmas Eve, December 24, 2008.
a full receptacle. It's not typical, but it does happen.
Plaintiff sued defendants, alleging their negligence in maintaining the premises. Following discovery, defendants moved for summary judgment, arguing that plaintiff could not prove a duty of care because it did not have actual or constructive notice of the dangerous condition. The motion judge agreed, reasoning:
In the present matter, there are no facts in the record to suggest a finding of actual or constructive knowledge of the plastic bag itself. This is presumably why [p]laintiff attempts to argue that the plastic bag was "garbage" that was part of a larger scheme of allowing garbage receptacles to overflow and allowing trash to remain on the ground.
. . . .
It is pure speculation to state that the source of the white plastic bag was an overflowing trash can, which, according to [p]laintiff's [exhibit pictures], does not immediately abut the site of [p]laintiff's fall.
. . . .
The failure to link the white plastic bag to the trash can causes [p]laintiff's case to
fail. For example, the bag could have been discarded by a customer immediately preceding Plaintiff out of the store or which had blown over from a neighboring establishment shortly before Plaintiff's fall. The proof is simply lacking.
. . . .
Simply put, Plaintiff cannot prove the length of time that the plastic bag was on the ground. Plaintiff has not cited any case law that would relieve Plaintiff of proving actual or constructive knowledge of the plastic bag. Without evidence of actual or constructive knowledge, and without the application of Ruiz [v. Toys "R" Us, Inc., 269 N.J. Super. 607 (App. Div. 1994)], Plaintiff's claim fails under basic principles of premise liability.
Plaintiff moved for reconsideration, arguing that she was entitled to an inference of negligence under the mode-of-operation rule because trash receptacles at the Plaza continually overflow with garbage, thus creating a dangerous condition. The judge denied the motion, explaining:
Plaintiff also argues there's a continuing pattern of conduct wherein the premises are left in a state of disrepair which establishes a continuing condition that is dangerous to the general public. However, plaintiff's mode of operation argument does not change the fact the plaintiff has no idea where the plastic bag came from. This contrasts greatly with the aforementioned mode of operation cases; slip on grape near display that sold loose grapes in open top plastic bags, slip on string beans near open string bean containers, slip on beverage near area where the beverages are served in paper cups without lids, trip on string in aIn a supplemental written opinion, the judge reiterated:
self-help loading area that has self-service string.
In all of these cases, where the mode of operation theory was applied, the plaintiffs were able to identify the source of the item that caused their injury. In contrast, plaintiff in this case is not aware of where the plastic bag came from and she never clearly saw it, touched it or kept it. Although plaintiff testified that there was an overflowing trash can about ten to twelve feet away, none of the trash that she described seeing near the trash can was a white plastic bag. It is simple speculation to state . . . (1) that . . . the plastic bag was garbage; and[] (2) that . . . it came from the nearby trash can.
[T]he plaintiff in the present appeal provided no proof as to the source of the object which allegedly caused her fall and provided no proof as to how long the object was on the ground. Accepting plaintiff's argument that she need not prove actual or constructive notice solely because there was some garbage elsewhere on the premises would essentially result in holding defendant strictly liable for injury resulting from any transient condition.
On appeal, plaintiff raises the same arguments she raised below. We reject them and affirm, substantially for the reasons stated by Judge Gizinski in her oral opinion of February 17 and March 30, 2012, and in her written opinion of May 23, 2012. We add the following comments.
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. Cred. Union, 199 N.J. 381, 400 (2009). The plaintiff bears the burden of proving each of these elements. Ibid. "The mere showing of an incident causing the injury sued upon is not alone sufficient to authorize the finding of an incident of negligence." Long v. Landy, 35 N.J. 44, 54 (1961); Simpson v. Duffy, 19 N.J. Super. 339, 343 (App. Div.), certif. denied, 10 N.J. 315 (1952). "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, supra, 35 N.J. at 54.
"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. An injured plaintiff must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). Constructive knowledge is "if the condition had existed for such a length of time that [the defendant] should have known of its presence." Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964).
Having failed to demonstrate that defendants were actually aware of the presence of the substance before she fell, plaintiff relies on Ratering v. Mele, 11 N.J. Super. 211 (App. Div. 1951), in support of her argument that defendants had constructive knowledge. In Ratering, the plaintiff slipped on steps in a vestibule between the inner and outer doors of the defendant's inn. Id. at 213. At 11:00 p.m., the plaintiff noticed the "vestibule steps were littered with cigarette butts, matches, cellophane paper, and similar matter." Ibid. The defendant had not swept the premises since that morning. Ibid. While leaving at 1:30 a.m., plaintiff slipped on the vestibule steps and injured herself. Ibid. The condition of the steps had worsened by the time of her fall. Ibid. The premises were busy that night but the defendant did not sweep the steps during the interval between the entry and departure of the plaintiff. Id. at 214. The trial court dismissed the negligence suit against the innkeepers at the end of the plaintiff's evidence. Id. at 212.
We reversed, stating:
Considering the established time lapse of at least two and a half hours in the light of all of the other pertinent circumstances, we have concluded that the plaintiffs'
evidence, together with the inferences which might justifiably be drawn therefrom in their favor presented an issue for the jury's consideration as to whether the improper condition of the stairs had existed for sufficient time to have been discoverable and remediable, in the exercise of reasonable care, before the injury occurred.
[Id. at 214 (citation omitted).]
The present incident, however, markedly differs from Ratering. In that case, the garbage piled up on stairs that every customer used. The garbage had been there for over two and a half hours. In contrast here, plaintiff offered no evidence of how long the substance on which she allegedly tripped was on the sidewalk. Indeed, plaintiff admitted not observing the bag prior to entering the Dollar Tree store, or even upon her exit. Indeed, plaintiff never even identified the substance as a plastic bag, much less where the substance came from. Instead, she attempts to link the bag to a trashcan ten to twelve feet away. But her suggestion amounts to pure speculation and, in any event, does not establish defendants' constructive notice of the so-called dangerous condition.
Courts have relieved plaintiffs of proving actual or constructive notice where a defendant's method of business creates a hazardous condition. When the very nature of a business's operation creates the hazard, however, the "mode-of- operation rule" creates an inference of negligence and "shifts the burden to the defendant to 'negate the inference by submitting evidence of due care.'" Nisivoccia, supra, 175 N.J. at 564 (quoting Bozza, supra, 42 N.J. at 360). In such a situation, the rule requires the defendant to show it did "all that a reasonably prudent [person] would do in light of the risk of injury [the mode of operation] entailed." Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966).
In arguing for mode of operation liability here, plaintiff relies on cases where the conduct of the defendant's business or the circumstances surrounding its operation were likely to create a dangerous condition that was reasonably foreseeable by the defendant. For instance, in Ruiz v. Toys "R" Us, Inc., 269 N.J. Super. 607, 609 (App. Div. 1994), plaintiffs, husband and wife, were shopping at Toys "R" Us in a shopping center. The wife was walking near the back of the store when she slipped and fell on a puddle of water, sustaining serious injuries. Ibid. Plaintiff later discovered that the roof had leaked ten previous times that year, resulting in wet spots on the floor. Id. at 610. The store was aware of these leaks and checked for wet spots on rainy days. Ibid. The jury found for the store after the trial court's instruction stated that the defendant had to have actual or constructive notice of the particular puddle on which plaintiff slipped. Id. at 611-12.
We reversed and remanded, holding that "'when plaintiff has shown that the circumstances were such as to create the reasonable probability that the dangerous condition would occur, [the plaintiff] need not also prove actual or constructive notice of the specific condition.'" Id. at 614 (quoting Bozza, supra, 42 N.J. at 360). "Notice of the condition of the roof, not notice of the specific water puddle, was sufficient to satisfy plaintiffs' burden, and as the court noted, defendants' knowledge of the condition of the roof was not in dispute." Id. at 615.
In Bozza, supra, the plaintiff slipped on a sticky, slimy substance when leaving the counter area of a self-service cafeteria. 42 N.J. at 358. The Court found that the plaintiff did not have to demonstrate actual or constructive notice, but rather that the circumstances were such as to create the reasonable probability that the dangerous condition would occur. Id. at 360. "Factors bearing on the existence of such reasonable probability would include the nature of the business, the general condition of the premises, a pattern of conduct or recurring incidents." Ibid. The plaintiff established an inference of negligence based on evidence that the defendants supplied no lids for beverage containers, did not require the use of trays, and the floor was littered with garbage. Id. at 361.
In Nisivoccia, supra, the plaintiff slipped and fell on some loose grapes when approaching the checkout lanes. 175 N.J. at 561. The grapes were displayed in the produce section in open-top, vented plastic bags that permitted spillage. Ibid. Although there was no evidence showing how the grapes fell to the floor or how long they had been there, ibid., the Court held that a mode-of-operation charge was appropriate. Id. at 565.
The Court stated that "when a substantial risk of injury is inherent in a business operator's method of doing business, the plaintiff is relieved of showing actual or constructive notice of the dangerous condition." Id. at 564. "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." Id. at 565. Due to the way the grapes were packaged, it was foreseeable that loose grapes could fall to the ground, creating a dangerous condition for customers walking in that area. Ibid.; see also Wollerman, supra, 47 N.J. at 429-30 (finding that after a plaintiff slipped on a string bean in the produce aisle of a supermarket, the defendant was required to anticipate the hazard of produce falling to the ground because of the self-service method of operation and the carelessness of customers and employees).
In Craggan v. IKEA USA, 332 N.J. Super. 53, 58 (App. Div. 2000), the plaintiff was injured by tripping on string while loading materials into his truck. The string was rolled up in boxes and used by customers to secure merchandise to their cars. Id. at 57. We found that the plaintiff did not have to show actual or constructive notice because the use of string by the defendant's customers created a dangerous condition. Id. at 61. "IKEA's mode of operation to facilitate self-service removal of purchased items created a reasonable probability that the string would not be properly coiled in its container after each use, would accumulate in the loading area, and create a tripping hazard for anyone using the area." Id. at 63.
These cases are readily distinguishable from the present matter. Most significantly, these all involved a direct causal link between the object slipped on and its known source, the latter originating in a particular circumstance, manner or method by which the defendant operated its business. So for instance, Nisivoccia, Wollerman and Bozza each concerned items that were sold on a self-service basis and could foreseeably fall on the floor because they were in open bags, bins or containers. Nisivoccia, supra, 175 N.J. at 561 (loose grapes displayed in open-top vented plastic bags); Wollerman, supra, 47 N.J. at 429 (string beans sold from open bins); Bozza, supra, 42 N.J. at 358 (customer's spillage).
Here, in contrast, plaintiff provided no proof whatsoever as to the source of the substance on which she allegedly slipped. Indeed, plaintiff never determined whether it was a plastic bag herself, simply stating that she saw "something white" on her foot. She offered no eyewitness testimony and relied instead on speculation that the bag came from the trashcan. See Long, supra, 35 N.J. at 54 ("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.").
Even if the source were identified, plaintiff has made no showing that spillage from the trash receptacle at the Plaza was likely to create a dangerous condition that was foreseeable by defendants, or that tripping on a plastic bag was a risk inherent in the shopping center's method of doing business. At most, the evidence suggested that while trash bins at the Plaza were frequently full, overflow was not "typical" so as to create a reasonably anticipatable hazardous condition that defendants should have known about or taken steps, beyond those contracted for, to guard against.
Having failed to demonstrate actual or constructive knowledge on the part of any of the defendants or, alternatively, to establish mode-of-operation liability, the grant of summary judgment in favor of all defendants was proper.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION