NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1687-14T4
ANNETTE TROUPE,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
January 26, 2016
v. APPELLATE DIVISION
BURLINGTON COAT FACTORY
WAREHOUSE CORPORATION,
Defendant-Respondent.
________________________________________
Submitted December 7, 2015 – Decided January 26, 2016
Before Judges Sabatino and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-8271-12.
Kelso and Bradshaw, attorneys for appellant
(Patrick J. Bradshaw, on the brief).
Reger Rizzo & Darnall, LLP, attorneys for
respondent (Richard M. Darnall and Thomas M.
Krick, on the brief).
The opinion of the court was delivered by
SUTER, J.S.C. (temporarily assigned).
Annette Troupe appeals the dismissal of her slip and fall
complaint following a motion for summary judgment by Burlington
Coat Factory Warehouse, Inc. (Burlington). We affirm because,
lacking any actual or constructive notice of the dangerous
condition, Burlington did not breach the duty of care to
plaintiff as its invitee. We hold as well, by applying the
Supreme Court's recent decision in Prioleau v. Kentucky Fried
Chicken, Inc., 223 N.J. 245 (2015), that the mode-of-operation
rule does not apply here, where the berry on the floor that
apparently caused the fall was not significantly connected with
any self-service component of Burlington's business.
I.
On the afternoon of April 22, 2011, plaintiff Annette
Troupe and her sister entered Burlington Coat Factory in the
Middlesex Mall and proceeded to the "Baby Depot" section in the
back of the store. Plaintiff's right foot slipped on an unseen
berry in the aisle, causing her to fall and seriously injure her
knee and back. Investigation revealed there was no other fruit
in the vicinity and no one eating fruit. The berry left a tell-
tale purplish smear along the floor extending from where Troupe
started to slip to where she came to rest, leaving a "little
seed." Troupe filed suit in December 2012.
Discovery revealed that an outside service cleaned the
store every morning before it opened. Aside from that, there
was no periodic sweeping of the floors, but employees who
dropped or saw something on the floor would pick up what was
there. The baby department required about the same amount of
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cleaning as the other departments, according to the former store
manager.
Troupe's liability expert issued a report that was critical
of Burlington for its lack of periodic inspections. He said
because Burlington sold baby and children's clothing,
"Burlington . . . should have foreseen, that at various times
those babies and children would be doing the things that babies
and children normally do, including eating snacks, drinking
drinks, and dropping things onto the floor." This posed a
"substantial risk of injury." The expert opined that
Burlington's failure to inspect was a "substantial contributing
cause of Ms. Troupe's fall."
Burlington's motion for summary judgment was granted by
Judge Arthur Bergman, who found Burlington had not breached its
duty of care because there was no evidence of actual or
constructive notice by Burlington of the berry prior to Troupe's
slip and fall. He also rejected application of the mode-of-
operation rule because the berry "wasn't anything that they're
selling." Troupe appeals from that order.
II.
Where there is an appeal from a summary judgment decision,
we review the decision de novo, meaning that we apply the same
standards used by the trial judge. W.J.A. v. D.A., 210 N.J. 229,
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237 (2012). The question then is whether the evidence, when
viewed in a light most favorable to the non-moving party, raises
genuinely disputed issues of fact sufficient to warrant
resolution by the trier of fact or whether the evidence 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, 540 (1995).
Applying this standard, the record amply supports Judge
Bergman's finding there were no genuine issues of fact about
Burlington's actual or constructive notice of the dangerous
condition prior to Troupe's fall. Further, the judge correctly
decided, as a matter of law, that the mode-of-operation rule
does not apply to these facts.
A.
Under New Jersey law, "[b]usiness 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 Garden, Inc., 175 N.J. 559, 563 (2003);
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). The
duty of due care to a business invitee includes an affirmative
duty to inspect the premises and "requires a business owner to
discover and eliminate dangerous conditions, to maintain the
premises in safe condition, and to avoid creating conditions
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that would render the premises unsafe." Nisivoccia, supra, 175
N.J. at 563.
Owners of premises are generally not liable for injuries
caused by defects of which they had no actual or constructive
notice and no reasonable opportunity to discover. Ibid. For
that reason, "[o]rdinarily an injured plaintiff . . . must
prove, as an element of the cause of action, that the defendant
had actual or constructive knowledge of the dangerous condition
that caused the accident." Ibid.
A defendant has constructive notice when the condition
existed "for such a length of time as reasonably to have
resulted in knowledge and correction had the defendant been
reasonably diligent." Parmenter v. Jarvis Drug Stores, Inc., 48
N.J. Super. 507, 510 (App. Div. 1957). Constructive notice can
be inferred in various ways. The characteristics of the
dangerous condition giving rise to the slip and fall, see, Tua
v. Modern Homes, Inc., 64 N.J. Super. 211, 220 (App. Div. 1960)
(finding constructive notice where wax on the floor had hardened
around the edges), or eyewitness testimony, see, Grvanka v.
Pfeifer, 301 N.J. Super. 563, 574 (App. Div. 1997), certif.
denied, 154 N.J. 607 (1998) (finding constructive notice where
eyewitness noted the light had been out for a while) may support
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an inference of constructive notice about the dangerous
condition.
Here, the trial court was correct that Troupe did not show
there was actual or constructive notice of the dangerous
condition of the premises prior to her fall. There was no proof
Burlington or any employee had actual knowledge about the berry
on the floor. There were no eyewitnesses and nothing about the
characteristics of the berry that would indicate how long it had
been there. There were no other berries in the vicinity. No
one was found to have been eating berries in the area. Without
actual or constructive notice of the dangerous condition, the
trial judge was correct that Burlington did not breach its duty
to Troupe.
B.
Troupe contends the trial court erred in not applying the
mode-of-operation rule because "the mode-of-operation that
created the hazard was the lack of any periodic inspection of
the floors during the business shopping day." Most recently,
the Court has clarified the mode-of-operation rule in Prioleau,
supra, 223 N.J. at 262-63. Prioleau involved a slip and fall
near the bathroom at a Kentucky Fried Chicken restaurant on
either grease tracked from the kitchen by employees or water
tracked into the store by customers on a rainy day. Id. at 249.
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The trial record established that Prioleau's slip and fall was
"unrelated to any aspect of defendants' business in which the
customer foreseeably serves himself or herself, or otherwise
directly engages with products or services, unsupervised by an
employee." Ibid. The Court held it was reversible error to
charge the jury on the mode-of-operation rule where there was no
connection between the slippery condition of the floor and the
self-service component of the business. Ibid.
In our case, Troupe encourages us to expand the mode-of-
operation rule beyond the narrow circumstances to which it has
been held to apply, claiming it should apply where the mode of
operation has to do with the store's cleaning schedule because
it was foreseeable that food items would be brought into the
children's department and then dropped on the floor by parents
or children. We decline to do so because this misconstrues the
rule in a manner that is inconsistent with Prioleau.
To begin with, the mode-of-operation rule is a "special
application of foreseeability principles" because of the risks
posed by self-service and "not a general rule of premises
liability." Id. at 338. When the rule applies, it "relieves
the plaintiff of the burden of proving actual or constructive
notice of the dangerous condition." Ibid. It "gives rise to an
inference of negligence, shifting the burden of production to
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the defendant, who may avoid liability if it shows that it did
all that a reasonably prudent man would do in the light of the
risk of injury the operation entailed." Ibid. (quotations and
alterations omitted). However, "the mode-of-operation doctrine
has never been expanded beyond the self-service setting, in
which customers independently handle merchandise without the
assistance of employees or may come into direct contact with
product displays, shelving, packaging, and other aspects of the
facility that may present a risk." Id. at 337-38. The Court
observed that what is important is "a nexus between self-service
components of the defendant's business and a risk of injury in
the area where the accident occurred." Ibid.
In applying these principles, we agree with Judge Bergman
the mode-of-operation rule does not apply to the facts in this
case. Here, the accident did not involve any self-service
component of Burlington's business. The slip and fall occurred
in an aisle, not in an area of clothing racks or "facilities
traditionally associated with self-service activities." There
was no demonstrable nexus between the self-service component of
Burlington's business, namely selling clothes and other non-food
items, and the risk of a customer slipping on a berry in the
aisle. See Arroyo v. Durling Realty, 433 N.J. Super. 238, 246
(App. Div. 2013) (rejecting a plaintiff's mode-of-operation
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theory of liability where the nexus between plaintiff's fall
outside of a convenience store on a discarded phone card and the
store's self-service rack offering such cards for sale was
"extremely attenuated"). Troupe did not show that the fruit had
anything to do with Burlington's business.
Troupe's expert report is not illuminating because it does
not address the mode-of-operation rule as our Supreme Court has
described it in Prioleau. Mode-of-operation liability is not
created merely because a store's cleaning schedule is allegedly
inadequate. Instead, such a theory of liability requires that
the dangerous condition arise from a self-service characteristic
of the store's operations. Prioleau, supra, 223 N.J. at 337-38.
To decide this case, we do not need to predict how the
mode-of-operation rule will be applied to the myriad of future
cases involving businesses that have self-service components.
For our decision, because the berry in the children's department
aisle had no demonstrable connection with any aspect of
Burlington's self-service business, the rule simply does not
apply. See Nisivoccia, supra, 175 N.J. at 565 (finding mode-of-
operation instruction appropriate where customer slipped on
grape near checkout in supermarket that sold grapes in plastic
bags open at the top).
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The Supreme Court has given us the principles that are to
guide us in our application of the mode-of-operation rule.
Troupe proposes an expansion that would swallow the rule by, in
effect, shifting the burden of production to self-service
businesses to show what conduct by their patrons was not
foreseeable. However, for the rule to apply as the Court has
explained, it is the patron who must first show a clear nexus
between the self-service component of the business and "a risk
of injury in the area where the accident occurred." Id. at 262.
That nexus was not shown here, which precludes application of
the mode-of-operation rule.
Because Troupe failed to show Burlington had actual or
constructive notice of the berry in the aisle, and because the
mode-of-operation rule does not apply, the trial court was
correct in granting Burlington's motion for summary judgment.
Affirmed.
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