LINDA ADLER VS. WAKEFERN FOOD CORP. (L-0882-17, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0026-18T4

LINDA ADLER,

Plaintiff-Appellant,

v.

WAKEFERN FOOD CORPORATION
and SHOPRITE OF WAYNE,

Defendants-Respondents,

and

REGENCY CENTERS and FW
NJ-PLAZA SQUARE,

Defendants.
________________________________

Argued June 18, 2019 – Decided July 10, 2019

Before Judges Koblitz and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-0882-17.

Alan K. Albert argued the cause for appellant (Brandon
J. Broderick, LLC, attorneys; Alan K. Albert, on the
brief).
 Charles Barber Carey argued the cause for respondents
(Carey & Grossi, attorneys; Charles Barber Carey, on
the brief).

PER CURIAM

Plaintiff Linda Adler appeals from the July 20, 2018 order of the Law

Division granting summary judgment in favor of defendant Inserra

Supermarkets, Inc. (Inserra) in this premises liability action, and the August 17,

2018 order denying her motion for reconsideration. We affirm.

I.

Adler alleges she was injured when she slipped and fell in the frozen food

aisle of a Shop Rite supermarket operated by Inserra. During discovery, Adler

admitted that she did not know what caused her to slip and fall and that she did

not see any object on the floor either before or after the incident. According to

Adler, an employee of Inserra was stocking shelves nearby when she fell. He

asked if she was injured. Adler left the store shortly after the incident.

Approximately twenty minutes later, Adler returned to the store to

complete an incident report. She testified that while she was completing the

report, the employee brought a piece of an orange to the manager and said it was

the object that caused Adler to slip and fall. Adler conceded that she did not

know where the orange piece came from or how long it had been on the floor

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before she slipped and fell. Inserra does not sell orange pieces at the store, only

whole oranges. Whole oranges are not sold in the frozen food aisle.

At the conclusion of discovery, and after the court set a trial date, Inserra

moved for summary judgment. 1 Inserra acknowledged that Adler slipped and

fell in its store and that it had a duty to correct hazardous conditions of which it

had notice. It argued, however, that Adler did not create a genuine issue of

material fact with respect to whether Inserra had actual or constructive notice

that the piece of orange was on the floor prior to Adler's fall.

The trial court granted Inserra's motion. The court concluded that,

accepting as true Adler's allegation that the piece of orange caused her to slip

and fall, she produced no proof that Inserra had actual or constructive notice of

the hazardous condition. Thus, the court determined because there is no genuine

issue of fact with respect to notice, as a matter of law Adler could not establish

Inserra was liable for her injuries. A July 20, 2018 order memorializes the trial

court's decision.

1
Adler initially named as defendants Wakefern Food Corp. (Wakefern),
ShopRite of Wayne, Regency Centers (Regency), and FW-NJ Plaza Square
(Plaza Square). In its answer, Inserra alleged that it was improperly pleaded as
Wakefern. Adler voluntarily dismissed her claims against Wakefern, Regency,
and Plaza Square and the matter proceeded against Inserra. The supermarket
operated by Inserra is known as ShopRite of Wayne.
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 Adler subsequently moved for reconsideration. She argued for the first

time that the trial court erred when it heard oral argument on Inserra's motion

twenty-seven days before the scheduled trial date, contrary to R. 4:46-1. The

Rule provides that the return date of a summary judgment motion should be no

later than thirty days before a scheduled trial date, unless the court orders

otherwise for good cause.

On August 17, 2018, the trial court entered an order denying Adler's

motion for reconsideration. The order, which was not accompanied by a written

or oral opinion, states that "there is no[] showing that this court made a mistake

of law or fact in granting defendant's motion for summary judgment."

This appeal followed. Adler reiterates her argument with respect to Rule

4:46-1 and argues she produced sufficient evidence to create a genuine issue of

material fact with respect to whether Inserra had actual or constructive notice of

the hazardous condition that caused Adler to slip and fall, precluding entry of

summary judgment against her.

II.

We review the trial court's decision granting summary judgment de novo,

using "the same standard that governs trial courts in reviewing summary

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

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162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant

summary judgment when "the pleadings, depositions, answers to interrogatories

and admissions on file, together with the 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 or order as a matter of law." "Thus, the movant must

show that there does not exist a 'genuine issue' as to a material fact and not

simply one 'of an insubstantial nature'; a non-movant will be unsuccessful

'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995)).

Assertions that are unsupported by evidence "[are] insufficient to create a

genuine issue of material fact." Miller v. Bank of Am. Home Loan Servicing,

L.P., 439 N.J. Super. 540, 551 (App. Div. 2015) (alteration in original) (quoting

Heyert v. Taddese 431 N.J. Super 388, 414 (App. Div. 2013)). "Competent

opposition requires 'competent evidential material' beyond mere 'speculation'

and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.

415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun

Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005)). We review the record

"based on our consideration of the evidence in the light most favorable to the

parties opposing summary judgment." Brill, 142 N.J. at 523.

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 In order to establish a prima facie case of negligence a plaintiff must

establish: (1) a duty of care; (2) breach of that duty; (3) proximate cause; and

(4) damages. Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div. 2002).

"Whether a person owes a duty of reasonable care toward another turns on

whether the imposition of such a duty satisfies an abiding sense of basic fairness

under all of the circumstances in light of considerations of public policy."

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). Courts should

consider "the relationship of the parties, the nature of the attendant risk, the

opportunity and ability to exercise care, and the public interest in the proposed

solution." Ibid.

"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." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). "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 that would render the premises unsafe.'" Troupe v. Burlington Coat

Factory Warehouse Corp., 443 N.J. Super. 596, 601 (App. Div. 2016) (quoting

Nisivoccia, 175 N.J. at 563).

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 "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." Id. at 601-02. "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.'" Id. at 602 (alternation in original).

Constructive knowledge is established with proof that the condition

existed "for such a length of time as reasonably to have resulted in knowledge

and correction had the defendant been reasonably diligent." Ibid. (quoting

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, Grzanka v. Pfeifer, 301 N.J. Super. 563, 574 (App.
Div. 1997) (finding constructive notice where
eyewitness noted the light had been out for a while)
may support an inference of constructive notice about
the dangerous condition.

[Ibid.]

Having carefully reviewed Adler's arguments in light of the record and

applicable legal principles, we affirm the July 20, 2018 order. We agree with

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the trial court's conclusion that Adler produced no evidence creating a genuine

issue of material fact with respect to whether Inserra had actual or constructive

notice of the condition that caused her to slip and fall.

Adler did not see what caused her to fall. In addition, even if we accept

as true Adler's hearsay testimony that an Inserra employee identified the piece

of orange as the cause of her fall, Adler produced no evidence with respect to

the source of the orange piece, the length of time that it was on the floor, or

whether the employee noticed the hazardous condition before Adler fell.

We reject, as did the trial court, Adler's argument that because the

employee was stocking shelves near where she slipped and fell, Inserra was on

notice of the hazardous condition. Inserra conceded that each of its employees

has a duty to maintain a safe environment for customers and a responsibility to

be on the lookout for spills that create hazards. There is, however, no evidence

in the motion record that the employee near where Adler fell was expected to

monitor the condition of the floor while performing his assigned task of stocking

shelves or was remiss in not noticing and remediating the hazardous condition

before Adler's fall.

In addition, the fact that other customers periodically reported falling at

the supermarket during the seven years preceding Adler's fall does not create a

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genuine issue of material fact. Inserra's notice of prior hazards is not evidence

that Inserra had actual or constructive notice of the piece of orange on which

Adler slipped and an opportunity to remove that hazardous condition.

We also affirm the August 17, 2018 order denying reconsideration. "A

motion for reconsideration . . . is a matter left to the trial court's sound

discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane

Morris, LLP, 202 N.J. 79, 87 (2010)). A party may move for reconsideration of

a court's decision pursuant to Rule 4:49-2 on the grounds that (1) the court based

its decision on "a palpably incorrect or irrational basis," (2) the court either

failed to consider or "appreciate the significance of probative, competent

evidence[,]" or (3) the moving party is presenting "new or additional information

. . . which it could not have provided on the first application[.]" Cummings v.

Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria,

242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).

The trial court correctly concluded Adler did not establish that the July

20, 2018 order was decided on a palpably incorrect or irrational basis. Nor did

Adler present new or additional evidence not available to her prior to entry of

the July 20, 2018 order. While the trial court's findings of fact and conclusions

of law on the motion for reconsideration were minimal, we are satisfied that we

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had a sufficient record on which to effectively review the trial court's decision.

R. 1:7-4(a).

Adler's argument with respect to the return date of Inserra's motion lacks

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We note, however, that Adler did not object to the timing of the motion, either

before the return date or during oral argument on the motion, and concedes that

she had sufficient time to oppose the motion and prepare for oral argument. In

the absence of an objection by Adler, we see no abuse of discretion on the part

of the trial court with respect to the scheduling of the motion.

Affirmed.

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