MARYANN ZAGLOBA VS. VISTA GARDENS ASSOCIATES, LLC (L-8737-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3117-16T4

MARYANN ZAGLOBA,

Plaintiff-Appellant,

v.

VISTA GARDENS ASSOCIATES, LLC,

Defendant-Respondent,

and

L&M WASHERS COMPANY,

Defendant.
______________________________

Argued June 26, 2018 – Decided July 26, 2018

Before Judges Simonelli and Koblitz.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
8737-15.

Peter J. Koulikourdis argued the cause for
appellant (Koulikourdis and Associates,
attorneys; Peter J. Koulikourdis and Tina L.
Naraine, on the brief).

Robert F. Colquhoun, II, argued the cause
for respondent (Colquhoun and Colquhoun, PA,
attorneys; Robert F. Colquhoun, II, on the
brief).
PER CURIAM

Plaintiff Maryann Zagloba appeals from the trial court's

March 3, 2017 order granting summary judgment and dismissing her

slip-and-fall complaint. Plaintiff injured her back when she

slipped on laundry detergent spilled in the mailroom of her

apartment building, owned by defendant Vista Gardens Associates

LLC (Vista Gardens). Relying on the mode-of-operation doctrine,

plaintiff contends that Vista Gardens was liable for the injuries

she sustained. In granting summary judgment, Judge John D. O'Dwyer

found the mode-of-operation doctrine inapplicable and that

plaintiff failed to demonstrate actual or constructive notice of

a dangerous condition. Having considered plaintiff's arguments

in light of the record and applicable principles of law, we affirm.

The material facts were undisputed. Plaintiff was a tenant

in defendant's apartment complex. On Sunday, November 6, 2013,

she was in the building's mailroom, carrying her laundry basket

and detergent on her way to do laundry, when she slipped on

detergent spilled on the floor near the laundry room door. The

laundry room is leased to L&M Washers.1 Tenants entered the

laundry room through the mailroom. The building provides coin-

operated washers and dryers, but the tenants must supply their own

1
L&M Washers Company previously prevailed on a summary judgment
motion and is not a party to this appeal.

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detergent. Plaintiff noticed in the past liquids, but not

detergent, spilled in the laundry room, but had not previously

noticed any spills on the floor in the mailroom.

We review a trial court's grant of summary judgment de novo,

employing the same standard used by the trial court. Henry v.

N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Pursuant

to that standard, the trial court shall grant summary judgment if

the evidence "show[s] 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." R. 4:46-2(c); see also

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29

(1995).

In order to sustain her negligence claim, plaintiff had the

burden to demonstrate four elements: "(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. Cty.

of Essex, 196 N.J. 569, 584 (2008)). "A landlord of a multiple-

family dwelling has the duty to maintain all parts of the structure

and equipment in good repair . . . ." Dwyer v. Skyline Apts.,

Inc., 123 N.J. Super. 48, 51 (App. Div.), aff'd o.b., 63 N.J. 577

(1973). The landlord provides "an implied warranty of

habitability." Trentacost v. Brussel, 82 N.J. 214, 226 (1980).

"[L]andlords and business owners should be liable for foreseeable

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injuries that occur on their premises." Kuzmicz v. Ivy Hill Park

Apts., 147 N.J. 510, 517 (1997).

Vista Gardens had 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." Nisivoccia v. Glass Gardens, Inc., 175 N.J.

559, 563 (2003) (citation omitted) (discussing the duty owed by

business owners to invitees). In asserting a breach of this duty,

plaintiff needed to demonstrate "that 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).

The parties' respective burdens change substantially under

the mode-of-operation doctrine, which addresses "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." Nisivoccia, 175 N.J. at 563; see Prioleau, 223 N.J.

at 258. The dangerous condition may arise from customer

negligence, the actions of employees, "or the inherent qualities

of the merchandise itself." Prioleau, 223 N.J. at 263. When

applicable, "the rule gives rise to a rebuttable inference that

the defendant is negligent, and obviates the need for the plaintiff

4 A-3117-16T4
to prove actual or constructive notice." Id. at 258. The

defendant then has the "obligation to come forward with rebutting

proof that it had taken prudent and reasonable steps to avoid the

potential hazard." Nisivoccia, 175 N.J. at 563-64.

"[T]he 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."

Prioleau, 223 N.J. at 262; see also Walker v. Costco Wholesale

Warehouse, 445 N.J. Super. 111, 121 (App. Div. 2016) (recognizing

the application of mode-of-operation liability principles to

businesses providing goods through "self-service" operations).

The Court specifically rejected the idea that the doctrine applied

whenever a risk of injury was "inherent in the nature of the

defendant's operation." Prioleau, 223 N.J. at 264 n.6 (citation

omitted).

Although it was foreseeable that tenants would bring

detergent through the mailroom and into the laundry room, tenants

could not purchase detergent in the building. We agree with Judge

O'Dwyer that in these circumstances the mode-of-operation

principles do not apply.

Affirmed.

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