NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-3229
_____________
JOHNA GOLDSACK,
Appellant
v.
WALMART STORES, INC., AKA Walmart Supercenter; JOHN DOES 1-10 Fictitious
names representing unknown individuals; XYZ CORPS 1-10 Fictitious names
representing unknown corporations, partnerships and/or Limited Liability Companies or
other types of legal entities; 300-400 PARK PLAZA DRIVE, INC., a/k/a 300-400 Park
Plaza Dr Inc.
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-16-cv-05354)
District Judge: Hon. Susan D. Wigenton
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 17, 2020
Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.
(Filed January 17, 2020)
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OPINION
_______________
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
This appeal arises from a slip-and-fall suffered by Appellant Johna Goldsack at a
store operated by Appellee Walmart Stores, Inc. (“Walmart”). On summary judgment,
the District Court dismissed Goldsack’s claims in their entirety, concluding that she had
failed to raise a genuine dispute as to any material fact that Walmart had notice of the
condition that caused her fall or that she otherwise was entitled to an inference of
negligence under New Jersey’s “mode-of-operation” rule. Goldsack challenges both of
those holdings on appeal. We conclude that she forfeited her arguments regarding notice
by failing to raise them before the District Court. We also agree with the District Court
that the record in this case cannot sustain the application of New Jersey’s mode-of-
operation rule to her claims. Accordingly, we will affirm.
I. BACKGROUND
On July 3, 2015, Goldsack went to a Walmart in Secaucus, New Jersey. Upon
entering the store, Goldsack walked along an aisle at the front of the store to the customer
service desk to return an item. As she walked, she passed rows of checkout registers on
one side, and passed an in-store McDonald’s, an ice machine, and a bathroom on the
other. Goldsack did not notice any liquid on the floor while walking to the customer
service desk and made it there without incident.
It took Goldsack “about [a] minute” to reach the service desk. (App. at 93.)
Because the desk was “short-handed,” a Walmart employee asked Goldsack to retrieve a
replacement for the item she intended to return, which Goldsack did. (App. at 100-01.)
The item was located “to the right” when she “walk[ed] out of customer service,” and
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other than going to that area, she “didn’t have to walk anywhere else.” (Id.) After
completing her return, Goldsack began walking back in the same direction from which
she had first approached the service desk. This time, however, she slipped and fell on
what appeared to be a puddle of water. The exact location of the accident is somewhat
unclear. Goldsack herself indicated that she slipped in front of cash register number 7,
between the register and the in-store McDonald’s. However, there was deposition
testimony from other witnesses suggesting she may have fallen closer to the ice machine,
which was located in front of cash registers number 9 and number 10.1
Much of the argument on appeal focuses on the ice machine and its potential role
in the accident. The ice machine is simply a freezer stocked with bags of ice. It is “self-
service,” in that customers purchase ice by removing the 10-pound bags of ice on their
own and bringing the bags to any check-out register. The ice machine is stocked by
Walmart employees who manually bring the bags from a freezer in the back of the store.
A Walmart employee testified that “sometimes water drips from” the bags when Walmart
employees stock the ice machine because “[the ice is] melting while they’re putting it
in[.]” (App. at 108.) Goldsack cites no evidence that the ice bags dripped during the
process in which customers removed and purchased ice from the freezer.
1
Based on photographs of the aisle in the record, it is clear that there is an
appreciable distance between the ice machine and register number 7. However, the exact
distance between the ice machine and either register number 7 or the puddle that
Goldsack slipped on is not in the record.
3
Goldsack filed suit against Walmart in New Jersey state court alleging her July
2015 fall was caused by Walmart’s negligence and that she suffered personal injuries as a
result. Walmart timely removed the case to the District Court pursuant to 28 U.S.C.
§§ 1441 and 1446.2
Walmart eventually moved for summary judgment on all of Goldsack’s claims. It
argued that, as a matter of law, Goldsack could not raise a triable issue of fact regarding
her allegations of negligence for two reasons: (i) she lacked any evidence that Walmart
had actual or constructive knowledge of the puddle that caused her fall, and thus could
not establish a breach of duty under New Jersey law; and (ii) New Jersey’s “mode-of-
operation” rule was inapplicable to her claims. The mode-of-operation rule applies in 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 v.
Kentucky Fried Chicken, Inc., 122 A.3d 328, 338 (N.J. 2015). The rule “gives rise to a
rebuttable inference that the defendant is negligent, and obviates the need for the plaintiff
to prove actual or constructive notice.” Id. at 335. The theory underlying the rule is that
it would be inequitable to require a plaintiff to prove notice “in circumstances in which,
as a matter of probability, a dangerous condition is likely to occur as the result of the
2
Goldsack also initially named 300-400 Park Plaza Drive, Inc. (“Park Plaza”), a
New Jersey corporation, as a defendant. In its Petition for Removal, Walmart argued that
Park Plaza was fraudulently joined as a defendant and its presence should not destroy the
District Court’s diversity jurisdiction over the dispute. It does not appear that Goldsack
ever contested Walmart’s assertion that Park Plaza was improperly joined, and the parties
stipulated to Park Plaza’s dismissal with prejudice.
4
nature of the business, the property’s condition, or a demonstrable pattern of conduct or
incidents.” Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314, 316 (N.J. 2003).
Goldsack opposed Walmart’s motion, but made no argument that Walmart had
actual or constructive notice of the puddle that she slipped on. Instead, she was explicit
that her opposition was predicated entirely on the application of the mode-of-operation
rule. (See App. at 235 (“The question of material fact is not about Defendant’s actual or
constructive knowledge of the hazard. The material fact question is: where did the water
puddle originate? If the answer is Defendant’s self-service sale of bagged ice, the mode
of operation principle applies.”)). Goldsack also was specific that the aspects of
Walmart’s self-service ice sales that “created the slip hazard” and triggered the mode-of-
operation rule were “Defendant’s freezer restocking process or the customer self-service
access to the freezer’s bagged ice contents[.]” (App. at 236.)
After receiving full briefing from the parties, including a surreply from Goldsack,
the District Court rendered its decision on Walmart’s summary judgment motion. It
concluded that Goldsack had failed to raise a genuine dispute as to any material fact
regarding the first element of her negligence claims: breach of duty. Specifically, the
Court said that it was “undisputed that Walmart did not have actual notice of the
puddle[,]” (App. at 7) and that given “the lack of evidence that the water was on the floor
for a prolonged period of time, a reasonable jury could not find that Walmart had
constructive notice of the water on its floor.” (App. at 8.) The Court concluded further
that Goldsack could not invoke the mode-of-operation rule to obviate her need to raise a
genuine dispute of material fact regarding Walmart’s actual or constructive notice of the
5
puddle because she could not “demonstrate a nexus between Walmart’s self-service
freezer and her injuries.” (App. at 9.) Accordingly, the District Court granted Walmart’s
motion.
This timely appeal followed.
II. DISCUSSION3
Goldsack raises two arguments. First, she says that the District Court erred in
finding no genuine dispute of material fact regarding Walmart’s lack of actual or
constructive notice of the puddle, given evidence in the record that a Walmart employee
purportedly was aware of the puddle before the accident. Second, Goldsack asserts that
she presented evidence sufficient to at least raise a genuine dispute as to whether the
mode-of-operation rule applies to her claims. Both arguments lack merit.
Goldsack forfeited her first contention—that the District Court erred in its
determinations with respect to actual and constructive notice—by not making any
argument on those issues, or citing any evidence relevant thereto, before the District
Court. “To preserve a matter for appellate review, a party must unequivocally put its
position before the trial court at a point and in a manner that permits the court to consider
its merits. It is well established that arguments not raised before the District Court are
waived on appeal.” Garza v. Citigroup Inc., 881 F.3d 277, 284 (3d Cir. 2018) (internal
3
The District Court had jurisdiction pursuant to 28 U.S.C § 1332. We have
jurisdiction pursuant to 28 U.S.C. § 1291. “It is well established that we employ a
plenary standard in reviewing orders entered on motions for summary judgment, applying
the same standard as the district court.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,
265 (3d Cir. 2014).
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quotation marks and citations omitted). “[O]ur precedents reveal at least two
characteristics that identical arguments always have. First, they depend on the same legal
rule or standard. Second, the arguments depend on the same facts.” Spireas v. Comm’r
of Internal Revenue, 886 F.3d 315, 321 (3d Cir. 2018) (alteration in original and citation
omitted); see also Liberles v. Cook County, 709 F.2d 1122, 1126 (7th Cir. 1983) (“It is a
well-settled rule that a party opposing a summary judgment motion must inform the trial
judge of the reasons, legal or factual, why summary judgment should not be entered. If it
does not do so, and loses the motion, it cannot raise such reasons on appeal.”). Walmart
squarely raised the issue of its lack of notice of the puddle in its summary judgment
motion. Rather than address the issue on the merits, Goldsack took the position that
notice was irrelevant because the mode-of-operation rule applied to her claims. Having
failed to utilize the full and fair opportunity she had before the District Court to challenge
Walmart’s arguments on the notice issue, she cannot now do so for the first time on
appeal.4
Goldsack’s second argument – that the mode-of-operation rule applies to her
claims – also fails. For the mode-of-operation rule to apply, there must be a “nexus
4
Goldsack also criticizes the District Court for not “mention[ing]” or
“consider[ing]” evidence in the record that she urges demonstrates Walmart’s actual or
constructive knowledge of the puddle. (Opening Br. at 18.) But Goldsack’s misguided
criticism ignores that she failed to cite, as was her obligation to do, any such evidence in
her summary judgment briefing. District Courts are not required to search through the
record for evidence to support a party’s assertion of the existence of a genuine dispute of
material fact. See Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896
(5th Cir. 2013) (“Rule 56 does not impose upon the district court a duty to sift through
the record in search of evidence to support a party’s opposition to summary judgment.”).
7
between the self-service aspect of defendant’s business and the plaintiff’s injury.”
Prioleau, 122 A.3d at 337. Although Goldsack cites ample evidence that Walmart’s ice
machine was “self-service” and that bags of ice could drip when Walmart employees
were stocking the machine, the record is conspicuously devoid of any evidence that
anyone – Walmart employee or customer – put ice into or took ice out of the ice machine
on the date of Goldsack’s accident (or any other time in reasonable proximity thereto).
Since the only evidence of dripping water from the ice is that it occurred during the re-
stocking process, it is of particular note that there is no evidence that the machine was
stocked in the time that elapsed between Goldsack’s trip to the customer service counter
and her walk back along the same route (or any other time in reasonable proximity
thereto). Goldsack herself was certainly in a position to see the restocking, had it
occurred, and she says nothing about that.
So, even assuming a relatively modest distance between the location of the ice
machine and the location of the puddle on which she slipped, there is no proof of nexus
between the puddle of water, the potential sources of which are myriad, and the machine.
In other words, there is no evidence from which a reasonable juror could do more than
speculate, particularly with the McDonald’s inside the store and just a few feet away, that
the source of the puddle was melting ice from the ice machine. Absent such a nexus
between the ice machine, i.e., the “self-service” aspect of Walmart’s business, and
Goldsack’s accident, the mode-of-operation rule is inapplicable. See id. at 339 (holding
that mode-of-operation rule was not implicated where source of hazard that resulted in
accident was not from self-service part of the business).
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III. CONCLUSION
For the foregoing reasons, we will affirm the order of the District Court.
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