NOT FOR PUBLICATION WITHOUT THE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-0491-15T4
ANA COLON,
Plaintiff-Appellant,
v.
TOYS "R" US-DELAWARE, INC.,
improperly pled as TOYS R US,
Defendant-Respondent.
_____________________________________________
Argued November 15, 2016 – Decided March 29, 2017
Before Judges Suter and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-0952-14.
Robert A. Conforti argued the cause for
appellant (Rinaldo Law Offices, attorneys;
Mr. Conforti, of counsel; Richard P.
Rinaldo, on the briefs; Jeff Thakker, of
counsel and on the briefs).
Seth Malkin argued the cause for respondent
(Levin & Malkin, attorneys; Mr. Malkin, on
the brief).
PER CURIAM
Plaintiff Ana Colon appeals from a Law Division order
granting summary judgment in favor of defendant Toys "R" Us-
Delaware, Inc. and dismissing her complaint with prejudice. We
affirm.
On April 20, 2012, plaintiff was shopping in one of
defendant's stores with her nine-year-old nephew. After
selecting a toy for the child, plaintiff entered the check-out
lane. Plaintiff briefly left the lane to get an ice cream for
her nephew from a nearby self-service refrigerator. As she was
returning to the lane, plaintiff slipped and fell.
Assistant store manager Yorel Simmons saw plaintiff fall
and helped her up. After cleaning the floor area where
plaintiff fell, Simmons rang up her purchase. Simmons then
prepared an incident report regarding the accident. Plaintiff
stated that she "fell on the floor, because something on the
floor was wet[] or someone spit on the floor." Simmons stated
that plaintiff "slipped on the floor" and noted that there was
liquid on the floor from a previous customer. Simmons had
inspected the area about five minutes earlier and observed that
the spilled liquid did not come from an item sold in the store.
Simmons noted that a "previous guest had some liquid in a bottle
that spilled after she left."
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Plaintiff did not seek immediate medical attention and did
not see a doctor until after she consulted with counsel who
referred her to one in July or August 2012.
Plaintiff filed this action asserting a negligence claim,
alleging defendant failed to exercise proper care and caused a
dangerous and hazardous condition to exist which was the
proximate cause of plaintiff's injury.
In a sworn statement, Simmons said he observed "a customer
with a small child who had a cup with liquid inside" which
"might have spilled on the ground." Simmons maintained that
when he inspected the area "a couple of minutes prior to the
accident," he "did not see any liquid on the ground." After
plaintiff's fall, Simmons noticed a "small puddle" approximately
six inches in length, which he described as "clear," but
otherwise was "not sure what it was."
Plaintiff testified at a deposition that she thought she
slipped on bubble-blowing liquid, because it was "shiny" and
"seemed like little bubbles." Defendant sold bottles of bubble-
blowing liquid in the store at the time of plaintiff's accident.
However, plaintiff did not see any open bottles or containers on
the floor where she fell, and admitted that she did not know how
the liquid got on the floor or how long it had been there.
3 A-0491-15T4
Simmons testified that a child waiting in line in front of
plaintiff was holding juice in a "pouch." Simmons acknowledged
that this was inconsistent with the observation he made in his
incident report and subsequent statement, but he believed that
the child was holding a pouch and not a cup or a bottle.
Simmons did not know where the liquid came from but believed the
child in the carriage in front of plaintiff spilled juice,
although he did not witness the child, or anyone else, spill any
liquid.
Defendant moved for summary judgment, arguing that
plaintiff did not establish a negligence claim because she
failed to prove that defendant had notice of the spilled liquid
before plaintiff slipped on it. Plaintiff opposed the motion,
arguing that Simmons' statement that "[t]he previous guest had
some liquid in a bottle that spilled" was sufficient evidence
for a rational jury to find that Simmons was on notice that
another customer had spilled the liquid, and thus, his failure
to warn plaintiff of the spill was negligent.
Plaintiff also argued the mode-of-operation rule should
apply to raise an inference of negligence because defendant's
store had a "refreshment area" from which customers retrieved
ice cream and soft drinks to consume around the store, creating
slip and fall hazards like the one plaintiff was injured by.
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On August 20, 2015, Judge Kenneth J. Grispin granted
defendant's motion for summary judgment, agreeing that plaintiff
did not establish the notice element. The court was not
persuaded that a rational factfinder could infer from Simmons
report alone that Simmons had notice of the spill before
plaintiff slipped on it. Furthermore, the judge declined to
apply the mode-of-operation rule because plaintiff failed to
show a nexus between the method or manner in
which [d]efendant's business is operated when
extending products to the public and the harm
alleged to have caused her injury. There has
been no testimony that the substance she
slipped on was the result of a spilled drink,
ice cream, or water. Further, there has been
no evidence showing that [d]efendant's store
was prone to having spillage of this type, or
that the area in question was ill-kept.
On appeal, plaintiff maintains that because defendant's
store allows self-service of "soda, water, ice cream and bubble-
blowing products throughout the premises" the proprietor is on
constructive notice of slip-and-fall hazards at its premises.
Alternatively, plaintiff maintains that "even without the mode
of operation rule, there was a genuine issue of fact as to the
defendant's actual/constructive knowledge of the spill, and it
was for the jury to decide whether the defendant discharged its
duty to Ms. Colon."
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Our review of a ruling on summary judgment is de novo and
we apply the same legal standard as the trial court. Coyne v.
N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Twp. of
Cinnaminson v. Bertino, 405 N.J. Super. 521, 531 (App. Div.),
certif. denied, 199 N.J. 516 (2009).
Business 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. Hopkins v. Fox & Lazo
Realtors, 132 N.J. 426, 433 (1993). The duty of due 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.
O'Shea v. K. Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div.
1997). Generally, a proprietor "is not liable for injuries
caused by defects of which he had no actual or implied knowledge
or notice, and no reasonable opportunity to discover." Brown v.
Racquet Club of Bricktown, 95 N.J. 280, 291 (1984).
"[I]n circumstances in which, as a matter of probability, a
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," the mode-of-
operation rule may accord the plaintiff "an inference of
negligence, imposing on the defendant the obligation to come
6 A-0491-15T4
forward with rebutting proof that it had taken prudent and
reasonable steps to avoid the potential hazard." Nisivoccia v.
Glass Gardens, Inc., 175 N.J. 559, 563-64 (2003).
Recently, the Court reaffirmed four principles guiding the
application of the mode-of-operation doctrine:
First, 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 . . . .
Second, the rule applies only to accidents
occurring in areas affected by the business's
self-service operations, which may extend
beyond the produce aisle of supermarkets and
other facilities traditionally associated
with self-service activities . . . .
Third, the . . . rule is not limited to cases
in which customer negligence created the
dangerous condition; it also applies to self-
service settings in which the injury may have
resulted from the manner in which employees
handled the business's products or equipment,
or the inherent qualities of the merchandise
itself . . . .
Fourth, if the . . . rule applies, it affects
the parties' burdens of proof in two respects.
The rule relieves the plaintiff of the burden
of proving actual or constructive notice of
the dangerous condition. . . . [and] gives
rise "to an inference of negligence, shifting
the burden of production to the defendant, who
may avoid liability if it shows that it did
'all that a reasonably prudent man would do
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in the light of the risk of injury [the]
operation entailed.'"
[Prioleau v. Ky. Fried Chicken, Inc., 223 N.J.
245, 262-263 (2015).]
Applying these principles, we are satisfied that plaintiff
has failed to establish any nexus between the liquid she alleges
caused her fall and defendant's self-service facility. Neither
of the two theories presented as to the source of the liquid had
any connection to defendant's self-serve area.
Yorel Simmons testified there were two self-serve coolers
near the store's check-out area, one for soda, the other for ice
cream. The soda cooler contained twenty-ounce plastic bottles,
while the ice cream cooler contained popsicles, ice cream
sandwiches, cups, and cones. At the time of plaintiff's
accident, Simmons was at a check-out counter waiting on a
customer who was immediately in front of plaintiff. The
customer had a three-year-old sitting in her cart holding a
juice container which Simmons described as "like a pouch, like a
Capri Sun pouch" and noted Toys "R" Us did not sell the product.
Plaintiff testified that she believed she slipped on
"bubbles" and speculated that someone opened a bubble container,
which were sold at the store, and "maybe they dropped it."
Neither the juice pouch described by Simmons nor the bubble
container suspected by plaintiff had any demonstrable nexus to
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the self-service soda and ice cream coolers maintained at
defendant's store.
Plaintiff relies on Bozza v. Vornado, Inc., 42 N.J. 355
(1964), and Ryder v. Ocean County Mall, 340 N.J. Super. 504
(App. Div.), certif. denied, 170 N.J. 88 (2001), in support of
her argument that she should not have to identify the source of
the spilled liquid. Her reliance on both cases is misplaced.
In Bozza, supra, the defendants operated a very busy self-
service restaurant within a retail store where patrons were
permitted to purchase, carry around, and consume food freely
throughout the premises, so much so that the area was littered
with "drippings, paper straw holders, napkins and dirt on the
floor." 42 N.J. at 358. Although the plaintiff could not
discern what "sticky," "slimy," "chocolate colored substance"
she slipped on, the Court nevertheless applied the mode-of-
operation rule because "the nature of defendants' business and
the general condition of defendants' premises would permit a
jury to infer negligence on the part of the defendants." Id. at
358, 361.
In contrast, defendant's checkout area contained only two
self-service coolers with no seating and was not a "self-service
cafeteria" as in Bozza, where customers could purchase "sodas,
hot dogs, hamburgers, French fried potatoes and the like" to be
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"consumed at the counter or carried, with or without trays, to
nearby tables." Id. at 358.
In Ryder, supra, a patron slipped on a drink spilled in the
common area of a mall. 340 N.J. Super. at 507-08. We found the
mode-of-operation rule applicable because the mall permitted
patrons to consume food with such frequency that the court
considered it "the functional equivalent of a cafeteria." Id. at
509. Mall personnel would get reports of one or more spills
every day with more on weekends and holidays. Ibid.
The use of the mall's common areas to consume food and
beverages in Ryder is distinguishable from the limited items
available at defendant's checkout area. Although patrons were
permitted to consume food items and beverages on defendant's
premises, there was no showing that patrons treated defendant's
checkout area as a "functional equivalent of a cafeteria." Ibid.
Plaintiff has failed to demonstrate a reasonable nexus
between the limited self-service items offered at defendant's
store and the dangerous condition allegedly producing her
injury.
Affirmed.
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STATE OF NEW JERSEY VS. JAMES BAKER(10-01-0087, UNION COUNTY AND STATEWIDE)
Combined Opinion