ARCELIE WILLIAMS VS. J.C. PENNEY COMPANY, INC. (L-0898-17, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-3292-18T3

ARCELIE WILLIAMS and
KEVIN WILLIAMS,

Plaintiffs-Appellants,

v.

J.C. PENNEY COMPANY, INC.,
J.C. PENNEY CORPORATION,
INC.,1 SCHINDLER ENTERPRISES,
INC. and SCHINDLER ELEVATOR
CORPORATION,

Defendants-Respondents.
_______________________________

Argued February 10, 2020 – Decided September 23, 2020

Before Judges Fasciale and Mitterhoff.

On appeal from the Superior Court of New Jersey,
Law Division, Gloucester County, Docket No. L-
0898-17.

1
Defendant-Respondent J.C. Penney Corporation, Inc. was also improperly
designated as J.C. Penney Company, Inc. at the trial level.
 Kenneth S. Saffren argued the cause for appellants
(Saffren & Weinberg, attorneys; Kenneth S. Saffren
and Jonathan H. Kaplan, of counsel and on the brief).

James L. Sonageri argued the cause for respondents
(Sonageri & Fallon, LLC, attorneys; James L.
Sonageri, on the brief).

The opinion of the court was delivered by

MITTERHOFF, J.A.D.

Plaintiffs Arcelie Williams and Kevin Williams appeal the Law

Division's March 1, 2018 decision that granted summary judgment in favor of

defendant J.C. Penney Company, Inc. (JCP), and defendants Schindler

Enterprises, Inc., and Schindler Elevator Corporation. 2 On appeal, plaintiffs

argue that (1) the motion judge erred in granting summary judgment to

defendants because constructive notice existed; and (2) the judge erred in

granting summary judgment to defendants because the doctrine of res ipsa

loquitor applied. Having reviewed the record, and in light of the applicable

law, we affirm the motion judge's grant of summary judgment as to Schindler,

and reverse and remand the judge's grant of summary judgment as to JCP.

We discern the following facts from the record. On August 3, 2015,

plaintiffs were shopping at the JCP store located at the Deptford Mall in

2
Hereafter, we refer to both Schindler entities singularly as "Schindler."

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Deptford Township, New Jersey. While on the second level of the JCP store,

plaintiffs attempted to use an escalator to descend to the first level. Arcelie

had used this escalator on prior occasions without incident. While entering the

escalator, Arcelie's left foot got caught on a metal platform that was

immediately in front of and connected to the escalator. Prior to the fall,

Arcelie did not look down, and did not notice anything unusual with the

escalator. The escalator platform was raised from the ground, with a gap of

approximately one to one-and-a-half inches between the platform and the

floor. Arcelie tripped and fell, consequently tearing the meniscus in he r left

leg.

Plaintiffs filed a complaint against JCP and Schindler. 3 Plaintiffs

alleged that defendants were negligent in failing to inspect or repair the

escalator, or to warn plaintiffs of the existence of the dangerous condition.

After the close of discovery, defendants moved for summary judgment.

Defendants argued that plaintiffs had failed to show that defendants had actual

or constructive knowledge of the alleged dangerous condition. Defendants

also maintained that, under these facts, the doctrine of res ipsa loquitor did not

3
Plaintiffs sought damages for Arcelie’s physical injuries, as well as damages
relating to loss of consortium for Kevin.

A-3292-18T3
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apply because a jury would be forced to speculate as to whether defendants

were negligent. Plaintiffs countered that as invitees, defendants owed them a

duty to discover and eliminate dangerous conditions in JCP's store, which

included the raised platform in front of the escalator. Plaintiffs argued that

defendants had constructive notice that the platform was dangerous because

the escalator was in an area of the store with significant foot traffic by

customers and employees. Plaintiffs also argued that defendants were liable

under a theory of res ipsa loquitor, alleging that Arcelie's injury at the top of

the escalator was an injury that bespeaks negligence.

The motion judge determined that plaintiffs failed to provide sufficient

evidence as to whether defendants had actual or constructive notice of the

dangerous condition. The judge found that plaintiffs provided no testimony

explaining JCP's procedures for routine maintenance and inspections, nor any

expert testimony detailing whether the metal platform that Arcelie tripped on

was defective or needed to be repaired at the time of her fall. The judge found

plaintiffs' argument that they were entitled to relief under a theory of res ipsa

loquitor to be unavailing because Arcelie "could have caused or contributed to

the occurrence in which she was injured." The judge concluded that "even

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viewing the facts most favorable to the plaintiff, no genuine issue of material

facts exists such that a rational jury could find for the plaintiff."

Thus, the judge entered an order granting summary judgment in favor of

both defendants and dismissing plaintiffs' complaint with prejudice. This

appeal ensued.

On appeal, plaintiffs present the following point headings for our

review:

I. STANDARD OF REVIEW.

II. THE TRIAL COURT ERRED IN GRANTING
SUMMARY JUDGMENT TO . . . DEFENDANTS
WHERE DEFENDANTS WERE NEGLIGENT,
GENUINE ISSUES OF MATERIAL FACT EXIST
AND PLAINTIFFS HAVE ESTABLISHED
CONSTRUCTIVE NOTICE.

A. GENERAL NEGLIGENCE AND DEFENDANTS'
DUTY TO PLAINTIFFS.

B. PLAINTIFFS HAVE ESTABLISHED
CONSTRUCTIVE NOTICE OF THE DEFECT.

III. THE TRIAL COURT FURTHER ERRED IN
GRANTING SUMMARY JUDGMENT WHERE THE
DOCTRINE OF RES IPSA LOQUITOR APPLIED.

We review a ruling on a summary judgment motion de novo, applying the

same standard governing the trial court. Conley v. Guerrero, 228 N.J. 339,

346 (2017). Summary judgment is appropriate if "the pleadings, depositions,

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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."

R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995). We must view the evidence in a light most favorable to the non-

moving party to determine whether a rational factfinder could resolve the issue

in favor of that party. Brill, 142 N.J. at 540. We review issues of law de novo

and accord no deference to the trial judge's legal conclusions. Nicholas v.

Mynster, 213 N.J. 463, 478 (2013).

At the outset, we conclude that the motion judge correctly concluded

that the doctrine of res ipsa loquitur does not apply under these facts. "[I]t is

ordinarily a plaintiff's burden to prove negligence, and [negligence] is never

presumed." Khan v. Singh, 200 N.J. 82, 91 (2009) (citing Hansen v. Eagle-

Picher Lead Co., 8 N.J. 133, 139 (1957)). However, "[t]he doctrine of res ipsa

loquitur permits an inference of defendant's negligence 'where (a) the

occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was

within the defendant's exclusive control; and (c) there is no indication in the

circumstances that the injury was the result of the plaintiff's own voluntary act

or neglect.'" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting

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Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)); see also Khan, 200

N.J. at 91. This inference is permissive, and "the [finder of fact] is free to

accept or reject" it. Buckelew, 87 N.J. at 526. "Res ipsa loquitor is not a

panacea for the . . . doomed negligence cause of action." Szalontai v. Yazbo's

Sports Café, 183 N.J. 386, 400 (2005).

We agree with the motion judge that, based on the record, the doctrine of

res ipsa loquitur is inapplicable. Arcelie admitted that she did not look down

at the metal platform before walking onto the subject escalator. Therefore, it

is possible that Arcelie was acting negligently herself when she tripped and

fell. Since plaintiffs did not establish the requisite elements required to invoke

the doctrine of res ipsa loquitor, we agree with the motion judge's decision to

grant summary judgment in favor of all defendants on that issue.

Plaintiffs also argue that the motion judge erred in granting summary

judgment to defendants on the theory of negligence. We agree with respect to

JCP, but disagree as to Schindler.

In order to sustain their negligence claim, plaintiffs 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) (internal quotation marks omitted) (quoting Polzo v. Cnty. of Essex,

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196 N.J. 569, 584 (2008)). Whether a person owes a duty requires courts to

weigh several factors including "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." Hopkins v. Fox & Lazo Realtors, 132 N.J.

426, 439 (1993) (citing Goldberg v. Housing Auth. of Newark, 38 N.J. 578,

583 (1962)).

Although the motion judge applied the same duty of care to both JCP

and Schindler, we conclude that JCP owed a different, and greater, duty of care

to plaintiffs than Schindler. Although the relationship of Schindler is not

explicitly stated in the submissions of the parties, we infer from the record that

Schindler installed the escalator. As such, Schindler owed a duty to perform

the installation in a manner generally accepted by companies that install such

equipment by reason of their specialized expertise and experience. Heyer v.

Jersey Cent. Power & Light Co., 106 N.J.L. 211, 213 (E. & A. 1929).

Consequently, Plaintiffs would be required to show that Schindler improperly

installed the metal platform of the escalator.

Where, as here, the claims involve "a defect in a complex

instrumentality, an expert is frequently required to assist the jury in

understanding the mechanical intricacies and weighing competing theories of

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causation." Ford Motor Credit Co. v. Mendola, 427 N.J. Super. 226, 236

(App. Div. 2012) (citing Lauder v. Teaneck Ambulance Corps, 368 N.J. Super.

320, 330-31 (App. Div. 2004)); see also Jimenez v. GNOC, Corp., 286 N.J.

Super. 533, 544-47 (App. Div. 1996) (indicating that an escalator is a complex

instrumentality). The intricacies of the installation and technical maintenance

of the escalator entails "'a complex process involving assessment of a myriad

of factors' that 'is beyond the ken of the average juror.'" Davis v. Brickman

Landscaping, 219 N.J. 395, 408 (2014) (quoting Giantonnio v. Taccard, 291

N.J. Super. 31, 44 (App. Div. 1996)). Plaintiffs' decision not to introduce

expert testimony is fatal to the claims against Schindler. A jury would be

required to engage in "sheer speculation" as to the possible causes of the

allegedly improper installation or maintenance of the metal platform of the

escalator. Jimenez, 286 N.J. Super. at 546 (citing Dombrowska v. Kresge-

Newark, Inc., 75 N.J. Super. 271, 274-75 (App. Div. 1962)). Thus, we affirm

the trial judge's grant of summary judgment in favor of Schindler on the issue

of negligence.

We reach a different result with respect to JCP. As indicated, whether a

duty of care exists involves balancing several factors: "the relationship of the

parties, the nature of the attendant risk, the opportunity and ability to exercise

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care, and the public interest in the proposed solution." Hopkins, 132 N.J. at

439. As customers, plaintiffs were both invitees. It is well-settled that, with

respect to invitees, 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."

Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (citing O'Shea v.

K Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997)). JCP, as the

business owner, also had the opportunity and ability to exercise care to p revent

injuries. See Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 517 (1997)

(citation omitted) (the "underlying rationale is that [business owners] are in the

best position to control the risk of harm. Ownership or control of the

premises, for example, enables a party to prevent the harm."). Moreover, there

is a clear public interest in JCP providing a reasonably safe space for the use

of its customers. See Butler v. Acme Markets, Inc., 89 N.J. 270, 284 (1982).

The motion judge found that there was no genuine issue of material fact

as to whether JCP had actual or constructive notice of the risen platform near

the escalator. We disagree.

Typically, "in addition to establishing a defendant's duty of care, a

plaintiff must also establish the defendant had actual or constructive

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knowledge of the dangerous condition that caused the accident." Prioleau v.

Kentucky Fried Chicken, Inc., 434 N.J. Super. 558, 570 (App. Div. 2014)

(citing Nisivoccia, 175 N.J. at 563). Focusing the discussion on constructive

notice, "[a] defendant has constructive notice when the condition existed 'for

such a length of time as reasonably to have resulted in knowledge and

correction had the defendant been reasonably diligent.'" Troupe v. Burlington

Coat Factory Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016)

(quoting Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App.

Div. 1957)). "Constructive notice can be inferred in various ways." Ibid.

"The characteristics of the dangerous condition giving rise to the slip and fall

. . . or eyewitness testimony . . . may support an inference of constructive

notice about the dangerous condition." Ibid.

Here, we conclude that there was sufficient circumstantial evidence from

which a jury could find that JCP had constructive notice of the dangerous

condition that caused Arcelie's injury. A jury could reasonably infer that JCP

was on constructive notice by virtue of the fact that the escalator and the raised

platform were in an area that would be frequented by both customers and

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employees.4 As the owner of the premises, JCP was in the best position to

discover and fix dangerous conditions, including the raised platform. See

Prioleau, 434 N.J. Super. at 570. Under these facts, a jury could determine

that JCP should have been on notice of an elevated metal platform in front of

the escalator. Troupe, 443 N.J. Super. at 602. If so, a jury could determine

that JCP's failure to take precautionary measures to cure the dangerous

condition constituted negligence. For example, JCP could have erected

warning signs in lieu of making repairs, see Prioleau, 434 N.J. Super. at 583,

or placed yellow tape on the floor near the platform of the escalator.

Thus, we reverse the trial judge's grant of summary judgment in favor of JCP,

and remand the matter for trial, at which time a jury may determine whether

defendant was negligent in failing to take precautions to address the dangerous

condition created by the raised metal platform. To the extent we have not

addressed any of plaintiffs' remaining arguments, we conclude that they are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

4
In fact, Arcelie testified that there was a JCP employee standing right by the
escalator at the time of the accident.

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Affirmed in part and remanded. We do not retain jurisdiction.

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