NOT FOR PUBLICATION WITHOUT THE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-3726-19
WIDELANDE RAYMOND,
Plaintiff-Appellant,
v.
LAYNA REALTY, LLC, and
PENTAURUS PROPERTIES, LLC,
Defendants-Respondents.
______________________________
Argued July 27, 2021 – Decided August 10, 2021
Before Judges Sumners and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-2185-18.
John D. Gagnon argued the cause for appellant (Rabb,
Hamill, PA, attorneys; Laura A. Rabb, of counsel and
on the briefs).
Jill Cantor-Burns argued the cause for respondent (CP
Law Group, attorneys; Jill Cantor-Burns, on the brief).
PER CURIAM
Plaintiff Widelande Raymond sustained serious bodily injury when she
slipped and fell on a slippery substance on the stairs at her apartment building,
which was owned by defendant Layna Realty, LLC, and managed and
maintained by defendant Pentaurus Properties, LLC. The motion judge granted
summary judgment to defendants on the basis that plaintiff failed to present any
evidence that defendants had actual or constructive notice of the dangerous
condition on the stairs.
On appeal, plaintiff argues the judge erred because she provided proof that
defendants had constructive notice of the slippery substance on the stairs. Also,
plaintiff alternatively argues that the mode-of-operation rule applies, thus she
did not have to show that defendants had constructive notice of the dangerous
condition. We disagree and affirm.
Appellate review of a ruling on a motion for summary judgment is de
novo, applying the same standard governing the trial court. Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). Thus, we
consider, as the motion judge did, "whether the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party, are
sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Id. at 406 (quoting Brill v. Guardian Life Ins.
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Co. of Am., 142 N.J. 520, 540 (1995)). If the judge finds no genuine issue of
material fact, the judge must then "decide whether the trial [judge] correctly
interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v.
Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL
Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We accord no
deference to the motion judge's legal conclusions. Nicholas v. Mynster, 213
N.J. 463, 478 (2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)).
Plaintiff was a third-floor tenant in a three-story apartment building ("the
apartment building") of about twenty-six units in Orange that was owned by
Layna Realty. Pentaurus Properties managed and maintained the apartment
building for Layna Realty, employing a resident superintendent who worked five
days a week and, if necessary, after his regular work hours to address tenants'
concerns. For about an hour to an hour and a half each morning, the
superintendent was required to mop the stairs, the landings, and tiled areas,
vacuum the carpet, and remove any minor debris from the stairwells and outside
the apartment building. The superintendent was also responsible for the same
work at Layna Realty's neighboring three-story apartment building also housing
about twenty-six-units.
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On May 11, 2017, between 8:00 p.m. and 9:00 p.m., plaintiff, wearing flip
flops, exited her apartment and walked down the stairs to go to the store. As
she descended from the second floor to the first floor, she slipped and "slid
straight down on [her] back," for about, "eight to ten steps – six or seven." After
falling, plaintiff observed that there was a "sticky . . . oily-like" substance on
the "steps" and on the "second[-]floor landing." The substance stained her
clothing and did not wash out. Plaintiff sustained injuries to her back, knees,
and left leg. Defendants did not produce any documentation demonstrating that
the stairs had been cleaned the day of the accident.
After suit was filed and discovery taken, defendants moved for summary
judgment. The motion judge issued an order granting the motion. In his oral
decision, the judge stated plaintiff did not meet her burden of providing proof
defendants actually knew the substance causing her fall was on the stairs or that
they had constructive notice of the substance because it was there for a
reasonable length of time –– but failed to remove it.1 The judge denied plaintiff's
reconsideration motion, which is not the subject of this appeal.
1
We note that technical difficulties caused the transcript of the judge's opinion
to contain many indiscernible statements, making it difficult to comprehend.
However, our understanding of his reasoning is apparent from what is
discernible and the parties' merits briefs.
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There is no dispute that defendants had a duty to maintain the apartment
building "in a reasonably safe condition" to guard against foreseeable dangers
arising from a tenant's use of the premises. See Coleman v. Steinberg, 54 N.J.
58, 63 (1969). Failure to do so can make them liable for injuries sustained by
tenants of the apartment building. See Townsend v. Pierre, 221 N.J. 36, 51
(2015) (noting that the elements of a negligence action are "(1) a duty of care,
(2) a breach of that duty, (3) proximate cause, and (4) actual damages" (quoting
Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008))); Scully v. Fitzgerald, 179
N.J. 114, 121-22 (2004) ("A landlord has a duty to exercise reasonable care to
guard against foreseeable dangers arising from use of portions of the rental
property over which the landlord retains control.") (citations omitted).
Plaintiff argues summary judgment should have been denied because she
provided sufficient proof that defendants had constructive notice of a slippery
substance on the stairs, which was not cleaned and, thus, caused her accident.
In support, she contends: (1) defendants were aware tenants walked down the
stairs that she fell down, carrying their trash to dispose of it outside in garbage
cans; (2) she slipped on a "sticky, oily-like" substance on the stairs; (3) she
"always s[aw] the floor" dirty; (4) that it is "common knowledge" that oily-like
substances turn "sticky only after being exposed to air for some length of time";
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and (5) defendants were aware that inspections of the stairs occurred in the
morning but were not inspected until the next morning. We are unpersuaded.
"The mere '[e]xistence of an alleged dangerous condition is not
constructive notice of it.'" Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238,
243 (App. Div. 2013) (alteration in original) (quoting Sims v. City of Newark,
244 N.J. Super. 32, 42 (Law Div. 1990)). "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," including from the "characteristics of the dangers giving rise to
the slip and fall . . . or eyewitness testimony . . . ." Ibid. (citations omitted).
The undisputed facts in the motion record make clear plaintiff did not
prove that defendants had constructive notice of the slippery substance on the
steps where plaintiff fell. Even viewing the facts in the light most favorable to
plaintiff, failed to establish the substance was on the stairs for a sufficient length
of time such that defendants should have known it was there if they had acted in
a reasonably prudent manner in keeping the stairs safe for passage. Plaintiff's
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argument that the apartment building superintendent only cleaned in the
morning did not establish that the substance had been on the stairs for a long
enough time for defendants to be made aware of its existence. The assertion is
completely speculative. Plaintiff's argument that the substance turns "sticky
only after being exposed to air for some length of time" is equally speculative.
Given the lack of evidence of what the substance was, the argument has no
factual support. Further, plaintiff did not submit an expert report opining that
the characteristics of the substance support her seemingly scientific-based
theory that the substance had been on the stairs for some time.
We find instructive our opinion in Troupe, 443 N.J. Super. at 601-02,
where we affirmed the trial court's grant of summary judgment. We concluded
there was no proof the defendant department store or any of its employees had
constructive knowledge of a dangerous condition, a berry on the floor, causing
plaintiff's slip and fall, because there was nothing in the record about the berry's
characteristics indicating how long it had been there.
We also find guidance in Paramenter, where we determined summary
judgment was not warranted. 48 N.J. Super. at 511. We concluded it was the
jury's duty to determine if rainwater blowing into a drugstore had lasted for a
sufficient "period of time," as evidenced by "[t]he dirtiness of the water
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tend[ing] to be corroborative of the length of time it lay on the floor," such that
the drugstore should have reasonably attended to the condition. Ibid.
Although we reached different conclusions as to the summary judgment
rulings in Troupe and Parmenter, they both illustrate that a plaintiff must show
there was something about the characteristics of the substance that caused a slip
and fall to present evidence of constructive notice to the factfinder. Here,
plaintiff proffered no reasonable explanation that defendants had constructive
notice of the slippery substance based on its characteristics that caused her slip
and fall. The motion judge made the correct ruling in granting summary
judgment dismissal of her complaint.
Alternatively, plaintiff argues the mode-of-operation rule applies, thereby
"reliev[ing] [her] of her obligation to have shown constructive notice of the
[dangerous] condition of the stairs." Because she failed to raise this argument
before the motion judge, we would normally not consider it as it does not "go to
the jurisdiction of the trial court or concern matters of great public interest."
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds
Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). For the
sake of completeness, however, we will address the argument.
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The mode-of-operation rule provides an inference of negligence against a
defendant business establishment by relieving a plaintiff of proving the
defendant had actual or constructive notice of a particular dangerous condition
if the defendant's mode of operation created the condition that caused the
accident. Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 248 (2015).
Our Court made clear in Prioleau that the mode-of-operation rule does not apply
where there is no evidence that the "plaintiff's accident . . . bears the slightest
relationship to any self-service component of defendant's business." Id. at 264.
Thus, the rule was not applicable where the plaintiff alleged that her slip and
fall at a fast-food restaurant was caused by either grease tracked on the floor by
employees working in the kitchen or patrons tracking water into building during
rainy weather. Id. at 264-65.
Our courts have "never . . . expanded [the mode-of-operation rule] 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." Id. at 262. "Thus, the mode-of-operation rule is not a general
rule of premises liability, but a special application of foreseeability principles in
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recognition of the extraordinary risks that arise when a defendant chooses a
customer self-service business model." Ibid.
Plaintiff's argument to apply the mode-of-operation rule to infer
negligence against defendants is without merit. Her accident did not result from
the type of self-service activity contemplated under the mode-of-operation rule.
Without any factual support, she alleges that she slipped and fell on a substance
left on the stairs by someone carrying out trash to the apartment building's
outside trash bins. Even assuming that is what happened, a tenant's disposal of
trash is not a self-service component of defendants' businesses. Based on
Prioleau, extending the mode-of-operation rule as plaintiff contemplates would
render the rule superfluous.
To the extent we have not addressed any of plaintiff's arguments, we
conclude they are without sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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WIDELANDE RAYMOND VS. LAYNA REALTY, LLC (L-2185-18, ESSEX COUNTY AND STATEWIDE)
Combined Opinion