NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0907-24
ROSALIE SOIRO,
Plaintiff-Appellant,
v.
FAMILY DOLLAR,1
Defendant-Respondent. __________________________
Submitted October 9, 2025 – Decided December 3, 2025
Before Judges Marczyk and Bishop-Thomspon.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4115-23.
John J. Pisano, attorney for appellant.
Sweeney & Sheehan, PC, attorneys for respondent (Neal A. Thakkar, on the brief).
PER CURIAM
1 Family Dollar Stores of New Jersey, LLC pleaded as "Family Dollar." Plaintiff Rosalie Soiro appeals from the October 4, 2024 order granting
summary judgment to defendant Family Dollar and dismissing her complaint.
We affirm.
We view the following facts established in the summary judgment record
in the light most favorable to plaintiff, the non-moving party. See Crisitello v.
St. Theresa Sch., 255 N.J. 200, 218 (2023). Plaintiff alleged, while walking
down an aisle, she slipped and fell on a clothes hanger on the floor of a Family
Dollar store in Orange. She further alleged she hit her head on a shelf and landed
on the floor, sustaining permanent injuries to her neck, back, left shoulder, and
left knee as a result of the fall.
During her deposition, plaintiff testified she was unaware of any hangers
on the floor before she fell and did not see what caused her to fall. She recounted
two young boys in the store told her the hangers on the floor caused her to fall;
however, she only saw the hangers on the floor after she fell.
The parties engaged in discovery; however, plaintiff did not depose any
Family Dollar store employees or a corporate designee. Additionally, plaintiff
did not produce any medical records or expert report establishing a causal
connection between the alleged fall and her claimed injuries.
A-0907-24 2 Following discovery, defendant moved for summary judgment.
Defendant argued plaintiff could not establish whether it had actual or
constructive notice of a dangerous condition, the mode of operation doctrine did
not apply, and plaintiff lacked medical proof of any injury causally related to
the incident. In opposition, plaintiff argued she was not required to establish
defendant had notice of the hangers on the floor because the mode of operation
doctrine applied.
After considering the parties' arguments, the motion court granted
defendant's motion. In its oral opinion, the court found plaintiff had not
established negligence. Citing Lewin v. Ohrbach's, Inc., 14 N.J. Super. 194
(App. Div. 1951), it determined there was no evidence in the record defendant
had either actual or constructive notice of the hanger on the floor, or that
defendant had a reasonable opportunity to discover the presence of a hanger on
the floor. It further concluded, relying on relevant case law, this matter was not
a mode of operation case. Additionally, the court noted the record did not raise
any factual issues—such as evidence store employees failed to walk through the
area or the presence of hangers on the floor—to preclude summary judgment.
A memorializing order was entered.
A-0907-24 3 Plaintiff subsequently moved for reconsideration of the October 4, 2024
order. She argued for the first time defendant failed to respond to her notice to
produce documents, which entitled her to an inference of negligence. In support
of her argument, plaintiff relied on her notice to produce to defendant, the June
26, 2023 incident report, and defendant's answers to interrogatories. However,
none of these documents were part of the initial summary motion record.
The court denied plaintiff's motion for reconsideration on November 22,
2024. In its statement of reasons, the court explained plaintiff failed to meet the
standard for reconsideration because she neither referenced defendant's
discovery responses in her opposition to the summary judgment motion, nor
asserted defendant's failure to respond to her notice to produce prevented her
from prosecuting her claim. The court further noted plaintiff did not comply
with the applicable discovery rules; specifically, she did not send a good faith
letter, move to compel discovery, or seek an extension of the discovery period.
On appeal, plaintiff argues the motion court erred in granting summary
judgment because the "inference of fact" weighed in her favor, which would
allow a jury to find defendant breached its affirmative duty to provide a
reasonably safe premises. In making this argument, she reprises the arguments
presented before the motion court. Plaintiff again contends she was not required
A-0907-24 4 to establish either actual or constructive notice because of defendant's method
or mode of operation as a variety store.
We review the trial court's grant or denial of a motion for summary
judgment de novo. Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257
N.J. 33, 71 (2024). Applying the same standard as that employed by the trial
court, we review the record to determine whether there are material factual
disputes and, if not, whether the undisputed facts viewed in the light most
favorable to plaintiff, as the non-moving party, nonetheless entitle defendant to
judgment as a matter of law. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). We
owe no deference to the trial court's legal analysis. Palisades at Fort Lee Condo.
Ass'n v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017).
To sustain a negligence claim, a plaintiff must demonstrate: "(1) a duty
of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages."
Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Essex,
196 N.J. 569, 584 (2008)). The plaintiff bears the burden of proving negligence.
See Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App. Div. 2004). In sum,
plaintiff "must prove that unreasonable acts or omissions by the defendant
proximately caused [their]injuries." Underhill v. Borough of Caldwell, 463 N.J.
Super. 548, 554 (App. Div. 2020).
A-0907-24 5 In the context of business premises liability, a defendant owes a plaintiff
"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) (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,
434 (1993)).
A defendant has an affirmative duty "to discover and eliminate dangerous
conditions, to maintain the premises in safe condition, and to avoid creating
conditions that would render the premises unsafe." Id. at 563 (citing O'Shea v.
K. Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997)). To establish a
breach of this duty, a plaintiff must demonstrate " the defendant had actual or
constructive knowledge of the dangerous condition that caused the accident."
Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015) (quoting
Nisivoccia, 175 N.J. at 563).
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0907-24
ROSALIE SOIRO,
Plaintiff-Appellant,
v.
FAMILY DOLLAR,1
Defendant-Respondent. __________________________
Submitted October 9, 2025 – Decided December 3, 2025
Before Judges Marczyk and Bishop-Thomspon.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4115-23.
John J. Pisano, attorney for appellant.
Sweeney & Sheehan, PC, attorneys for respondent (Neal A. Thakkar, on the brief).
PER CURIAM
1 Family Dollar Stores of New Jersey, LLC pleaded as "Family Dollar." Plaintiff Rosalie Soiro appeals from the October 4, 2024 order granting
summary judgment to defendant Family Dollar and dismissing her complaint.
We affirm.
We view the following facts established in the summary judgment record
in the light most favorable to plaintiff, the non-moving party. See Crisitello v.
St. Theresa Sch., 255 N.J. 200, 218 (2023). Plaintiff alleged, while walking
down an aisle, she slipped and fell on a clothes hanger on the floor of a Family
Dollar store in Orange. She further alleged she hit her head on a shelf and landed
on the floor, sustaining permanent injuries to her neck, back, left shoulder, and
left knee as a result of the fall.
During her deposition, plaintiff testified she was unaware of any hangers
on the floor before she fell and did not see what caused her to fall. She recounted
two young boys in the store told her the hangers on the floor caused her to fall;
however, she only saw the hangers on the floor after she fell.
The parties engaged in discovery; however, plaintiff did not depose any
Family Dollar store employees or a corporate designee. Additionally, plaintiff
did not produce any medical records or expert report establishing a causal
connection between the alleged fall and her claimed injuries.
A-0907-24 2 Following discovery, defendant moved for summary judgment.
Defendant argued plaintiff could not establish whether it had actual or
constructive notice of a dangerous condition, the mode of operation doctrine did
not apply, and plaintiff lacked medical proof of any injury causally related to
the incident. In opposition, plaintiff argued she was not required to establish
defendant had notice of the hangers on the floor because the mode of operation
doctrine applied.
After considering the parties' arguments, the motion court granted
defendant's motion. In its oral opinion, the court found plaintiff had not
established negligence. Citing Lewin v. Ohrbach's, Inc., 14 N.J. Super. 194
(App. Div. 1951), it determined there was no evidence in the record defendant
had either actual or constructive notice of the hanger on the floor, or that
defendant had a reasonable opportunity to discover the presence of a hanger on
the floor. It further concluded, relying on relevant case law, this matter was not
a mode of operation case. Additionally, the court noted the record did not raise
any factual issues—such as evidence store employees failed to walk through the
area or the presence of hangers on the floor—to preclude summary judgment.
A memorializing order was entered.
A-0907-24 3 Plaintiff subsequently moved for reconsideration of the October 4, 2024
order. She argued for the first time defendant failed to respond to her notice to
produce documents, which entitled her to an inference of negligence. In support
of her argument, plaintiff relied on her notice to produce to defendant, the June
26, 2023 incident report, and defendant's answers to interrogatories. However,
none of these documents were part of the initial summary motion record.
The court denied plaintiff's motion for reconsideration on November 22,
2024. In its statement of reasons, the court explained plaintiff failed to meet the
standard for reconsideration because she neither referenced defendant's
discovery responses in her opposition to the summary judgment motion, nor
asserted defendant's failure to respond to her notice to produce prevented her
from prosecuting her claim. The court further noted plaintiff did not comply
with the applicable discovery rules; specifically, she did not send a good faith
letter, move to compel discovery, or seek an extension of the discovery period.
On appeal, plaintiff argues the motion court erred in granting summary
judgment because the "inference of fact" weighed in her favor, which would
allow a jury to find defendant breached its affirmative duty to provide a
reasonably safe premises. In making this argument, she reprises the arguments
presented before the motion court. Plaintiff again contends she was not required
A-0907-24 4 to establish either actual or constructive notice because of defendant's method
or mode of operation as a variety store.
We review the trial court's grant or denial of a motion for summary
judgment de novo. Comprehensive Neurosurgical, P.C. v. Valley Hosp., 257
N.J. 33, 71 (2024). Applying the same standard as that employed by the trial
court, we review the record to determine whether there are material factual
disputes and, if not, whether the undisputed facts viewed in the light most
favorable to plaintiff, as the non-moving party, nonetheless entitle defendant to
judgment as a matter of law. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). We
owe no deference to the trial court's legal analysis. Palisades at Fort Lee Condo.
Ass'n v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017).
To sustain a negligence claim, a plaintiff must demonstrate: "(1) a duty
of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages."
Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty. of Essex,
196 N.J. 569, 584 (2008)). The plaintiff bears the burden of proving negligence.
See Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App. Div. 2004). In sum,
plaintiff "must prove that unreasonable acts or omissions by the defendant
proximately caused [their]injuries." Underhill v. Borough of Caldwell, 463 N.J.
Super. 548, 554 (App. Div. 2020).
A-0907-24 5 In the context of business premises liability, a defendant owes a plaintiff
"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) (citing Hopkins v. Fox & Lazo Realtors, 132 N.J. 426,
434 (1993)).
A defendant has an affirmative duty "to discover and eliminate dangerous
conditions, to maintain the premises in safe condition, and to avoid creating
conditions that would render the premises unsafe." Id. at 563 (citing O'Shea v.
K. Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997)). To establish a
breach of this duty, a plaintiff must demonstrate " the defendant had actual or
constructive knowledge of the dangerous condition that caused the accident."
Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015) (quoting
Nisivoccia, 175 N.J. at 563).
Notwithstanding plaintiff's argument she was not required to establish
defendant had either actual or constructive notice of a dangerous condition, the
record is devoid of any competent evidence to show or suggest actual or
constructive notice to hold defendant liable. In opposition to defendant's
summary judgment motion, plaintiff did not present the incident report or
deposition testimony from a store employee to demonstrate defendant had notice
A-0907-24 6 of the hanger on the floor. Even if we were to accept plaintiff's testimony as
true—the hanger was on the floor before her fall—there was no evidence
defendant had constructive knowledge the hanger was on the floor "for such a
length of time as reasonably to have resulted in knowledge and correction had
the defendant been reasonably diligent." Troupe v. Burlington Coat Factory
Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016) (quoting
Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957)).
In short, there is no genuine issue of material fact as to defendant's
negligence, as plaintiff offered no factual testimony to refute evidence defendant
lacked notice of the alleged dangerous condition prior to her fall. Thus, the
absence of actual or constructive notice of the dangerous condition is "fatal to
[a] plaintiff's claim[] of premises liability," and her claim could not proceed to
a jury. Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div.
2013).
Plaintiff argues the mode of operation doctrine applies, which relieves her
of demonstrating defendant's actual or constructive notice of the alleged
dangerous condition. See Model Jury Charges (Civil), 5.20F(11), "Mode of
Operation Rule" (rev. Nov. 2022); see also Nisivoccia, 175 N.J. at 563-65; Jeter
v. Sam's Club, 250 N.J. 240, 252 (2022). We reject plaintiff's argument.
A-0907-24 7 The "mode of operation rule is not a general rule of premises liability, but
a special application of foreseeability principles in recognition of the
extraordinary risks that arise when a defendant chooses a customer self -service
model." Prioleau, 223 N.J. at 262. In short, the doctrine is a "very limited
exception to the traditional rules of business premises liability." Jeter, 250 N.J.
at 257 (quoting Carroll v. N.J. Transit, 366 N.J. Super. 380, 389 (App. Div.
2004)).
When a plaintiff invokes the mode of operation doctrine, must
demonstrate the dangerous condition arose as a result of the business's self-
service mode of operation. Prioleau, 223 N.J. at 262. In doing so, a plaintiff
must establish a "nexus between self-service components of the defendant's
business and a risk of injury in the area where the accident occurred." Ibid. By
contrast, the doctrine does not apply where there is no evidence "the location in
which plaintiff's accident occurred . . . bears the slightest relationship to any
self-service component of defendant's business." Id. at 264.
Here, plaintiff's argument suffers from the same fatal flaw. She has not
established defendant operates a self-service business. Plaintiff did not depose
defendant's corporate designee, who could have provided testimony regarding
the description and nature of its business operations. Both parties describe
A-0907-24 8 defendant's business as a retail establishment. Absent factual evidence
regarding the nature of the merchandise for sale and the actual method of
defendant's business operations, plaintiff has not satisfied the requisite elements
to invoke the mode of operation doctrine. Accordingly, as a matter of law, we
cannot conclude defendant had constructive notice of the alleged dangerous
condition. See Arroyo, 433 N.J. Super. at 243.
Giving all reasonable inferences to plaintiff, she has not established a
dangerous condition existed on defendant's property and defendant was on
notice of the condition. Jeter, 250 N.J. at 251. To hold otherwise would
impermissibly permit a jury to engage in conjecture about notice because it
would have to speculate whether a hanger was on the floor, how the hanger came
to be on the floor, and the duration of its existence on the floor. Therefore, based
on our review of the record, we conclude defendant is entitled to summary
judgment as a matter of law. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582
(2021).
Affirmed.
A-0907-24 9