Jacquelin Arroyo v. Durling Realty, LLC.

78 A.3d 584, 433 N.J. Super. 238

• Court: New Jersey Superior Court Appellate Division
• Decided: October 23, 2013
• Docket: A-0967-12
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0967-12T3

JACQUELIN ARROYO, APPROVED FOR PUBLICATION Plaintiff-Appellant, OCTOBER 23, 2013 v. APPELLATE DIVISION DURLING REALTY, LLC,

Defendant-Respondent. _______________________________

Submitted October 8, 2013 - Decided October 23, 2013

Before Judges Messano, Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2282-11.

Zavodnick, Perlmutter & Boccia, L.L.C., attorneys for appellant (Christopher S. Byrnes, on the brief).

Suzanne D. Delvecchio, attorney for respondent.

The opinion of the court was delivered by

SABATINO, J.A.D.

In this personal injury case, plaintiff Jacquelin Arroyo

appeals the trial court's grant of summary judgment to

defendant, Durling Realty, LLC. We affirm.

Defendant owns and operates a Quick Chek convenience store

in Wantage. On May 16, 2010, plaintiff and her friend, who had been camping nearby, went inside the store. It was around 10:00

p.m., although the area outside the store was brightly lit.

Plaintiff and her friend purchased coffee and a few other items,

and then left the store.

According to plaintiff, after she left the store, she

slipped on a discarded telephone calling card, which was on the

sidewalk near the store entrance. Plaintiff injured her knee as

a result of her fall, requiring medical treatment.

Plaintiff claims in this negligence action that the

presence of the plastic card on the sidewalk created an

unreasonably dangerous condition. In support of her theory,

plaintiff notes that the phone cards are displayed on racks near

the store's cash register and the exit doors. Given that

proximity, plaintiff argues, in essence, that defendant should

have foreseen that the purchased cards would be taken out of the

store, immediately used, and discarded on the sidewalk.

Defendant's store manager stated in his deposition that the

front of the store is swept for cigarette butts and other

miscellaneous debris ten to fifteen times daily, and that the

entire front sidewalk and parking lot are swept twice each day.

In addition, he indicated that at the end of each shift, the

employees are required to sweep the area outside and make sure

that it is clean. The area is also vacuumed every two or three

2 A-0967-12T3 days. On the night in question, a shift ended at 10:00 p.m.,

shortly before plaintiff and her friend arrived. There is no

proof that any store employee was aware of the presence of the

card on the sidewalk in advance of plaintiff's mishap.

Plaintiff retained as a liability expert a construction

consultant, who opined that the store should have had handy

trash cans at the exit and also a regular sweeping schedule. In

addition, plaintiff argues that the store is liable under a

mode-of-operation theory.

After considering these arguments, the motion judge,

Lourdes I. Santiago, J.S.C., granted defendant summary judgment

and dismissed the complaint. The judge rejected plaintiff's

theories of liability. In her oral opinion, the judge concluded

that plaintiff had failed to "present evidence that the phone

card that caused the slip and fall was present for an

unreasonable amount of time," and that therefore "no genuine

issue of material fact [existed such that] a rational jury could

find for the plaintiff." The judge also declined to extend the

principles of mode-of-operation liability to this factual

setting.

Rule 4:46-2(c) directs that summary judgment must be

granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the

3 A-0967-12T3 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 . . . as a matter of law." The

appropriate inquiry must determine "'whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d

202, 214 (1986)). The court must review the evidence presented

"in the light most favorable to the non-moving party." Id. at

540. On appeal, we review summary judgment orders de novo,

utilizing the same standards applied by the trial courts.

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,

374 (2010). Applying these principles, we agree that summary

judgment was properly granted here.

We concur with Judge Santiago that, even if the record is

construed in a light most favorable to plaintiff, there is no

genuine issue as to whether defendant had actual or constructive

notice of the presence of the discarded phone card on the

sidewalk. The absence of such notice is fatal to plaintiff's

claims of premises liability. Nisivoccia v. Glass Gardens,

Inc., 175 N.J. 559, 563 (2003); Brown v. Racquet Club of

4 A-0967-12T3 Bricktown, 95 N.J. 280, 291 (1984). The mere "[e]xistence of an

alleged dangerous condition is not constructive notice of it."

Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990).

The record lacks competent proof that defendant failed to

exercise due care in the manner in which it maintained the

sidewalk outside of its store. We acknowledge that "[t]he

proprietor of premises to which the public is invited for

business purposes of the proprietor owes a duty of reasonable

care to those who enter the premises upon that invitation to

provide a reasonably safe place to do that which is within the

scope of the invitation." Butler v. Acme Mkts., Inc., 89 N.J.

270, 275 (1982). 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." Nisivoccia, supra, 175

N.J. at 563 (citing O'Shea v. K. Mart Corp., 304 N.J. Super.

489, 492-93 (App. Div. 1997)).

No witnesses or exhibits in the record contradict the store

manager's sworn testimony describing the Quick Chek's routine

maintenance and trash removal procedures. Those procedures have

not been shown by competent evidence to be unreasonable.

Moreover, the conclusory statements of plaintiff's expert

criticizing those procedures are not grounded in identified

5 A-0967-12T3 objective standards, and thus must be disregarded as

inadmissible net opinion. Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 372-73 (2011).

In both the expert's initial report and supplemental

report, he presents opinions "from my [meaning, his] experience"

without ever stating what that experience is, or explaining how

it is reflective of objective standards about convenience store

operations or maintenance. Here, as in Pomerantz, plaintiff has

failed to show that her expert's opinions were "more than the

expert's personal views." Pomerantz, supra, 207 N.J. at 373.

The expert alludes to the fact that "[m]any stores" require an

hourly "check sheet" for maintenance procedures, but he provides

no substantiation for this assertion and does not indicate

whether this is the prevailing or common practice in the

industry. A net opinion is insufficient to satisfy a

plaintiff's burden on a motion for summary judgment. Polzo v.

Cnty. of Essex, 196 N.J. 569, 583-84 (2008); Smith v. Estate of

Kelly, 343 N.J. Super. 480, 497-98 (App. Div. 2001).

We further agree with Judge Santiago that this is not an

appropriate case for the imposition of mode-of-operation

liability. In certain distinctive instances, our courts have

eliminated a tort plaintiff's requirement of proof of actual or

constructive notice where, "as a matter of probability, a

6 A-0967-12T3 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 such mode-of-operation cases, the

courts "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. See also Model

Jury Charge (Civil), 5.20F(11), "Notice Not Required When Mode

of Operation Creates Danger" (1970).

The Supreme Court's prior reported cases that have allowed

mode-of-operation liability have typically involved hazards

located inside of a defendant's retail building. For example,

in Bozza v. Vornando, Inc., 42 N.J. 355, 358 (1964), the

plaintiff was injured after slipping on a slimy substance on the

floor of a self-service cafeteria. There, the Court found that

there was a "reasonable probability that the dangerous condition

would occur" due to the fact that the cafeteria was a "very

busy" self-service operation that did not supply lids for its

beverage containers, nor require its patrons to use food trays.

Id. at 360-61.

Several years later, in Wollerman v. Grand Union Stores,

Inc., 47 N.J. 426, 428 (1966), the Court applied the mode-of-

7 A-0967-12T3 operation rule in a case where the plaintiff was injured after

slipping and falling on a loose string bean in the vegetable

section of a supermarket. The vegetables were sold "from open

bins on a self-service basis," thus creating a likelihood that

"some will fall or be dropped to the floor." Id. at 429.

Similarly, in Nisivoccia, supra, 175 N.J. at 561, the

plaintiff was injured after slipping and falling on loose grapes

approximately three feet from the checkout aisle of a

supermarket. The grapes "were displayed in open-top, vented

plastic bags that permitted spillage." Ibid. Because the

grapes were packaged in open and air-vented bags that "invited

spillage," the Court found that "[i]t was foreseeable then that

loose grapes would fall to the ground near the checkout area,

creating a dangerous condition for an unsuspecting customer

walking in that area." Id. at 565.

Our appellate opinions have extended the mode—of-operation

doctrine to include self-service businesses other than

cafeterias and supermarkets. See, e.g., O'Shea, supra, 304 N.J.

Super. at 491-95 (holding that the plaintiff was entitled to an

inference of negligence against a self-service store when a golf

bag fell from a display, causing a significant facial injury);

Craggan v. Ikea USA, 332 N.J. Super. 53, 59, 61-63 (App. Div.

2000) (concluding that a mode-of-operation jury instruction was

8 A-0967-12T3 proper where the plaintiff had tripped on string provided to

customers in the store's loading area so that they could secure

their purchases to their vehicles). In Craggan, we noted that a

"unifying factor" between these cases and the supermarket cases

was "a mode of operation designed to allow the patron to select

and remove the merchandise from the premises without

intervention from any employee of the storekeeper." Id. at 62.

The present case is dissimilar. The phone card was not

found inside defendant's store, but instead was on a sidewalk

outside. Unlike the self-service cases where a mode-of-

operation theory has been deemed viable, the retail chronology

here includes an interaction with a store employee after an item

has been taken by a customer from a self-service display. The

patron who presumably bought the phone card would have had to

take it off the display rack, present it to a cashier at

checkout, had the card activated by the cashier, and paid for

the card before taking it out of the store. The nexus between

the self-service rack and the eventual presence of the card on

the sidewalk outside is extremely attenuated.

Furthermore, it cannot be reasonably asserted here that the

convenience store's "method of doing business," see Nisivoccia,

supra, 175 N.J. at 564, created the hazard encountered by

plaintiff on the sidewalk. The transaction between the

9 A-0967-12T3 purchaser of the phone card and the store was fully concluded at

the time of purchase. The purchased item did not have to be

prepared for removal from the premises. What the purchaser

chose to do with the card after leaving the store was not an

integral feature of the store's retail operation. Consequently,

there would have been no principled basis to apply the special

elements of a mode-of-operation jury instruction here if the

case had gone to trial. Instead, ordinary principles of

premises liability, including the requirement of actual or

constructive notice of a dangerous condition on the sidewalk,

would pertain.

Lastly, we also find it significant here that a phone card

is not necessarily going to be used and discarded immediately by

its purchaser. The card stores a designated amount of calling

minutes. Those stored minutes conceivably can be applied to

multiple calls, depending upon the length of the calls and the

amount of time purchased. Because the card contains such stored

value, it is not debris that would invariably be tossed aside

when the card purchaser leaves the store. Cf. Kedia v.

Brookshire Grocery Co., 752 So. 2d 944, 946-48 (La. Ct. App.

1999) (in which the plaintiff successfully established a grocery

store's liability after slipping and injuring herself on a wet

promotional leaflet distributed at the store, because the store

10 A-0967-12T3 management "should have foreseen the possibility that customers

would discard [such leaflets] throughout the store").

Affirmed.

11 A-0967-12T3