Opinion
DOCKET NO. A-1410-13T1
02-22-2016
YOLANDA D. WHITE, Plaintiff-Appellant, v. 525 MEAT CORPORATION, d/b/a FINE FARE SUPERMARKETS, Defendant-Respondent.
Evan W. Zwillman argued the cause for appellant (Mr. Zwillman and Norman S. Karpf, attorneys; Mr. Zwillman, Mr. Karpf and Ronald M. Gutwirth, on the brief). Mark S. Kundla argued the cause for the respondent (Hardin, Kundla, McKeon & Poletto, attorneys; Mr. Kundla, of counsel; Candice H. Rienzo, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1696-11. Evan W. Zwillman argued the cause for appellant (Mr. Zwillman and Norman S. Karpf, attorneys; Mr. Zwillman, Mr. Karpf and Ronald M. Gutwirth, on the brief). Mark S. Kundla argued the cause for the respondent (Hardin, Kundla, McKeon & Poletto, attorneys; Mr. Kundla, of counsel; Candice H. Rienzo, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Plaintiff Yolanda White appeals from a Law Division order granting summary judgment to defendant 525 Meat Corporation, doing business as Fine Fare Supermarkets, and dismissing her personal injury complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.
I
We view facts from the record below in the light most favorable to plaintiff, the non-moving party. Angland v. Mountain Creek Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995)). On January 5, 2010, plaintiff was shopping with her daughter in defendant's Fine Fare Supermarket located in Newark. While approximately three feet from the checkout counter, plaintiff slipped and fell on liquid dish detergent that had spilled on the floor.
Plaintiff subsequently filed a personal injury complaint against defendant. During the ensuing discovery period, defendant's store manager, Alberto Diaz, provided conflicting accounts regarding his observation of the plaintiff's accident. In response to two separate interrogatory questions, Diaz certified that he did not see the accident occur. However, at his subsequent deposition, Diaz claimed he saw the accident. Diaz recounted that he saw a liquid dish detergent bottle fall from a another customer's shopping cart and spill onto the floor, and upon seeing plaintiff walking towards the spilled detergent, yelled "watch" to warn her. When asked to explain the discrepancy between his two accounts, Diaz merely claimed that a discussion with his attorney refreshed his memory.
Discovery also revealed that while a police incident report documenting the accident was prepared, no supermarket employee prepared an incident report, though it was store procedure to do so. Also, there was no surveillance video of the incident, because the supermarket's video recording system re-recorded over the tape every twenty to forty days. Furthermore, the dish detergent bottle that caused the accident was discarded.
At the close of discovery, defendant filed a motion for summary judgment. Following oral argument, the motion judge issued an oral decision granting summary judgement and dismissing plaintiff's complaint with prejudice. The judge found plaintiff did not establish that defendant was negligent; there was no circumstantial or direct evidence "as to how long the dish washing liquid, or the soap that [] plaintiff fell on, had been there." The judge also determined that the record did not support an inference of negligence based on: Diaz's conflicting statements that he saw the accident, the absence of video of the accident, and that the detergent bottle was discarded.
Further, the judge found that, because the plaintiff's accident occurred near the checkout aisle and was not caused by customer packaged produce, the mode-of-operation rule did not apply to infer defendant's negligence. The court determined that the rule only applies to where self-packaging in a store creates a foreseeable risk of danger of spilled materials, which was not the case here. The judge reasoned that to apply the rule would be tantamount to establishing strict liability, such that "anytime, anybody falls in a supermarket, anywhere near a checkout aisle, on anything that's slippery, regardless of how it's packaged, the supermarket will be liable."
On appeal, plaintiff argues that the motion judge's acceptance of one of the two versions of Diaz's account of the accident constituted an improper and impermissible weighing of a witness's credibility. Plaintiff also renews several arguments made below. One, that defendant's failure to preserve the store video of the accident and the dish detergent bottle was spoliation of the evidence which required an adverse inference against defendant and the denial of summary judgment. The other, that defendant's failure to prepare an incident report and obtain the name and address of the shopper who dropped the detergent bottle from her shopping cart requires a denial of summary judgment. Further, plaintiff argues that the motion court erred in ruling that the mode-of-operation rule did not apply to plaintiff's claim.
II
We are guided by the well-known principle that we review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). Thus, we consider, as the motion judge did, "'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.'" Id. at 406 (citation omitted). If there is no genuine issue of material fact, we must then "'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). Applying these standards, we discern no reason to disturb the motion judge's ruling.
Plaintiff, citing Brill, contends that the motion court impermissibly weighed Diaz's credibility when it accepted his deposition testimony and rejected his interrogatories. Brill, supra, 142 N.J. at 540. Plaintiff relies upon Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13 (App. Div. 2007), where we reversed a grant of summary judgment, finding that the motion judge "improperly abrogated the jury's exclusive role as the factfinder" when he determined that a witness's later statement was more credible that his recanted statement. Plaintiff argues that Diaz's conflicting statements must go to the jury, and the judge should not have granted summary judgment. We disagree.
The motion court correctly did not consider either of Diaz's two conflicting statements regarding his observation of the accident in its consideration of the summary judgment motion. Thus, no credibility was assigned to one statement over the other, as proscribed by Conrad. Moreover, none of Diaz's statements provide proof that defendant was negligent because it had constructive or actual notice of a substance on the floor that it failed to remove, thereby causing plaintiff's injury. See Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (a plaintiff has the duty to establish that a business had actual or constructive knowledge of a dangerous conditions creating unsafe conditions which it failed to eliminate). In one statement, Diaz contended that he did not see the accident, and in the other, he claimed that he did. Yet, neither statement applied in the light most favorable to plaintiff is evidence of defendant's negligence. See Davis, supra, 219 N.J. at 406.
Ironically, plaintiff acknowledged in her deposition that a man, believed to be the store manager, and her daughter, both shouted "watch out" before she slipped and fell on a substance on the floor. Nonetheless, a mere warning of a hazard does not infer or establish that such hazard was known to exist for a sufficient time to have prevented an accident from occurring.
We next turn to plaintiff's contention that defendant's failure to retain video of the accident or retain the dish detergent bottle constitute spoliation of the evidence which also requires denial of the motion for summary judgment. "'Spoliation of evidence in a prospective civil action occurs when evidence pertinent to the action is destroyed, thereby interfering with the action's proper administration and disposition.'" Manorcare Health Servs., Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 226 (App. Div. 2001) (quoting Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 364 (App. Div. 1998)). When litigation is likely, a prospective party aware of that probability is obligated to preserve evidence. Aetna, supra, 309 N.J. Super. at 365-67. Where the duty to preserve evidence is violated, the party is responsible regardless of whether the spoliation occurred because of intentional or merely negligent conduct. Id. at 368.
Although unclear, the judge's decision to reject plaintiff's claim of spoliation to oppose summary judgment was not based upon these principles. The judge stated:
There's no record before this [c]ourt that -- for example, the recording, the video recording didn't automatically record over itself, and in fact, that is the only evidence that's before the [c]ourt. I don't know, if the plaintiff had wanted to test the equipment or go to the manufacturer and see if that was not true, maybe we'd have a different situation, but the only evidence in this record is, . . . .
. . . .
And I don't have such a record before me. As far as a claim that there should be an inference of wrong doing because the container is not -- been produced -- you would clean up afterwards, and I don't have any evidence that any lawyer ever went back to the supermarket, you know, within a day or two after it happening (sic) and saying (sic), hold everything, we need to preserve it. And to argue that somehow, a month or so later, they would have a -- bottle of dish detergent, when no[]one has asked for that preservation, I think it restrains the credibility of what inferences can or cannot be reached.
We part company with the judge's apparent reasoning that the automatic re-recording of video exempts defendant from a claim of spoliation. Once the accident occurred, followed by the police investigation, defendant had a duty to preserve any recording that may have captured the accident and the contributing events leading up to the accident. However, we do not conclude that under the record before us that the absence of a video recording should result in the denial of summary judgment. According to the record, the nearest camera was forty-feet away. Plaintiff failed to show that the video recording would have been able to show when the liquid spill occurred, or the presence of liquid on the floor, in relation to her accident. There is also no evidence that defendant viewed a video of the accident before it was recorded over. Consequently, the inference sought by plaintiff — that defendant knew or should have of the spilled liquid — is not appropriate.
For a different reason, we conclude that defendant's failure to retain the bottle of spilled dish detergent, or prepare an incident report with the purchaser of the bottle's identity, cannot give rise to an inference of negligence. Neither bear any relevance to whether defendant was negligent. This is not a products liability suit against the manufacturer of the dish detergent, but a premises liability claim. Since there is no dispute that the leaking bottle caused the spill, it has no evidentiary value in proving defendant's negligence, i.e. whether defendant had actual or constructive notice of the condition that caused plaintiff's accident.
Which brings us to the last issue, plaintiff's contention that summary judgment should have been denied because the mode-of-operation rule applies. Our Supreme Court recently provided a thorough analysis of the mode-of-operation rule and its limitations in Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (2015). The rule provides an inference of negligence against a defendant business establishment by relieving a plaintiff of proving the defendant had actual or constructive notice of a particular dangerous condition, if the defendant's mode of operation created the condition that caused the accident. Prioleau, supra, 223 N.J. at 248 (citations omitted). 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.'" Id. at 260 (quoting Nisivoccia, supra, 175 N.J. at 566). Hence, the Prioleau Court made clear that the rule does not apply 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. Thus, the mode-of-operation rule did not apply where the plaintiff alleged that her slip and fall at a fast food restaurant was caused by either grease tracked on floor by employees working in the kitchen or patrons tracking water into building during rainy weather. Id. at 265.
A defendant can rebut the inference of negligence by showing that it did "'all that a reasonably prudent man would do in the light of the risk of injury [the] operation entailed.'" Nisivoccia, supra, 175 N.J. at 565 (quoting Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966)). However, given our ruling, rebuttal is not necessary. --------
Here, we also conclude that the mode-of-operation rule does not apply. We see no relationship between the spill of a liquid detergent bottle causing plaintiff's fall and a self-service component of defendant's business. One of defendant's customers placed a bottle of liquid detergent in a shopping cart and it leaked on the floor near the checkout counter, causing plaintiff to fall and injure herself. The liquid was not packaged by the customer or a store employee, and there is no indication in the record that a customer or employee's handling of the merchandise created the spill. The motion judge was correct in not applying the mode-of-operation rule to infer negligence against defendant.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION