NOT FOR PUBLICATION WITHOUT THE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
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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
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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
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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-
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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
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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
Jacquelin Arroyo v. Durling Realty, LLC.
Court: New Jersey Superior Court Appellate Division
Date filed: 2013-10-23
Citations: 433 N.J. Super. 238, 78 A.3d 584
Copy CitationsCombined Opinion