NOT FOR PUBLICATION WITHOUT THE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
3 A-3117-16T4
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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