BRIDGETT KNIGHT v. FAMILY DOLLAR STORES, INC. (L-5337-19, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2531-20

BRIDGETT KNIGHT,

Plaintiff-Appellant,

v.

FAMILY DOLLAR STORES,
INC.,1 JOSEPH BRACHE, and
RSK & SONS TRANSPORT,

Defendants-Respondents.
__________________________

Submitted August 2, 2022 – Decided August 31, 2022

Before Judges Geiger and Rose.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-5337-19.

Lord, Kobrin, Alvarez & Fattell, LLC, attorneys for
appellant (Paula C. Nunes and Robert A. Lord, on the
briefs).

1
Improperly pled as "Family Dollar."
 Sweeney & Sheehan, PC, attorneys for respondent
Family Dollar Stores, Inc. (Neal A. Thakkar, on the
brief).

PER CURIAM

In this personal injury matter, plaintiff Bridgett Knight alleged she injured

her right ankle and left knee when she slipped and fell on a clear, odorless

substance on the floor near the exit door of defendant Family Dollar Stores,

Inc.'s store in Edison. Plaintiff claimed the liquid emanated from a bottled

beverage located in a self-service refrigerator next to the cash register and, as

such, defendant should have known liquid could spill in the area where she fell.

After the close of discovery for fact witnesses, she sought to depose the store's

former manager. Plaintiff now appeals from an April 1, 2021 Law Division

order, denying reconsideration of February 19, 2021 orders that dismissed on

summary judgment her negligence complaint against defendant, and denied her

motion to extend discovery as moot.2 We affirm.

2
Plaintiff's complaint also asserted unrelated claims against defendants Joseph
Brache and RSK & Sons Transport, stemming from a prior motor vehicle
accident. Before the return date for the present motions, plaintiff settled her
claims with both defendants; they are not participating in this appeal.
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 I.

We summarize the facts from the motion record in a light most favorable

to plaintiff as the non-moving party. R. 4:46-2(c); Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 540 (1995). Just before noon on July 28, 2017,

plaintiff purchased goods at the cash register located near the exit of defendant's

store. While walking toward the exit, plaintiff slipped and fell as she approached

a black mat that abutted the store's exit. Although she did not see the substance

on the floor before she fell, plaintiff thereafter noticed liquid on the bottom of

her left flip-flop, the top of her foot, and her leg. It was not raining on the day

of the incident.

When deposed, plaintiff identified an undated photograph depicting the

area of the fall. In her certification in opposition to defendant's summary

judgment motion, plaintiff claimed she "slipped on water that was spilled and

formed into a puddle within the store, between the cash register and the exit

door." Plaintiff's counsel annexed to his certification undated photographs that

"show a refrigerator with self-serve single water bottles immediately next to the

cash register."

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 At some point, plaintiff obtained the undated incident report of the store's

manager, Anthony Vallie.3 Vallie was behind the register at the time of

plaintiff's fall and went to her aid. The short narrative states plaintiff "slipped

on some sort of liquid that was on the floor." Plaintiff told Vallie she was

"fin[e]" and "just needed some time." She left the store ten minutes later. Two

days after the incident, plaintiff sought medical attention for her injuries. She

thereafter underwent treatment that included arthroscopic debridement of her

right ankle and left knee.

Nearly two years after the accident, on July 18, 2019, plaintiff filed her

complaint against defendant, which filed a timely answer on August 9, 2019

pursuant to Rule 4:6-1(a). Assigned to Track 2, the case was subject to a 300-

day discovery period, R. 4:24-1(a), with an initial discovery end date of June 4,

2020.

Plaintiff's complaint also demanded defendant answer "Uniform

Interrogatories Form C and C-1." On a date that is not provided in the record,

defendant provided answers to both sets of interrogatories. In four of its answers

to Form C interrogatories, defendant referenced Vallie. As one notable example,

3
During her deposition, plaintiff could not recall when she got the report,
stating: "I may have had to come back and pick it up[,] . . . but I know we did
take [sic] an incident report there."
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defendant identified Vallie as someone "who did not witness the incident but

assisted . . . plaintiff shortly after the fall occurred." Defendant annexed Vallie's

incident report to its answers.

Discovery was extended once by stipulation, followed by two unopposed

defense extension motions. R. 4:24-1(c). On October 30, 2020, the civil

presiding judge entered the third and final order extending the discovery end

date to January 30, 2021. Pertinent to this appeal, the order provided a

December 31, 2020 completion date for party and fact witness depositions.

On January 21, 2021, plaintiff noticed Vallie's deposition for January 28,

2021.4 The following day, plaintiff requested defendant's consent to extend

discovery. Later that day, defense counsel advised his client refused to consent

to an extension but would attempt to determine whether "Vallie [wa]s still

employed there and if he [wa]s available for his deposition on the 28th."

Defendant also filed a motion for summary judgment on January 22, 2021.

On January 25, 2021, plaintiff filed a motion to extend discovery "for the

sole purpose" of deposing Vallie and adjourning the February 9, 2021 arbitration

date. Plaintiff's notice of motion did not address the March 29, 2021 trial date.

4
Although Rule 4:14-2(a) requires ten days' notice to all parties, defendant did
not object to Vallie's deposition notice on this ground.

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On January 27, 2021, defense counsel advised plaintiff that Vallie had not been

employed by the company since 2019. Defense counsel further stated he had

advised his client to obtain Vallie's last known contact information, but plaintiff

should not expect the deposition to occur the following day.

Both motions were returnable and heard on February 19, 2021, after the

conclusion of the January 30, 2021 discovery end date. Immediately following

argument, the judge issued an oral decision, granting defendant's summary

judgment motion and dismissing plaintiff's complaint with prejudice. The judge

found plaintiff failed to "elicit[] any facts that could support a finding that

defendant had actual or constructive notice of a dangerous condition or whether

a dangerous [condition] existed." The judge further found the "mode-of-

operation" theory of negligence was inapplicable to the present matter "under

the facts that have been developed through discovery in this case." The judge

entered an accompanying order that same day.

In view of his decision dismissing plaintiff's complaint on summary

judgment, the judge entered a separate order on February 19, 2021, denying as

moot plaintiff's motion to extend discovery. The order further stated plaintiff's

motion was filed out of time because the October 30, 2020 discovery extension

order required depositions of all parties and witnesses be completed by

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December 31, 2020. See R. 4:24-1(c) (requiring a motion to extend discovery

to be made "returnable prior to the conclusion of the applicable discovery

period").

At some point thereafter, plaintiff located Vallie. On March 11, 2021,

plaintiff moved for reconsideration, based on Vallie's March 10, 2021 affidavit,

which contained fill-in-the-blank sections, as follows:

1. I worked for Family Dollar located at 2303
Woodbridge Avenue in Edison from to 2019.

2. As per my incident report attached and marked[,] I
was working in my capacity as Store Manager on July
28, 2017, when at around 11:57 a[.]m[.,] Bridget[t]
Knight slipped and fell on liquid that was on the floor.

3. The area where Ms. Knight fell was between the cash
register and the exit door.

4. A self-serve cold refrigerator is located next to the
checkout area as shown in picture number 1 attached
hereto that I have marked.

5. During my 5 yr month/years of employment at the
store, customers have bought cold beverages and
opened them at the register or prior to leaving the store
on few/numerous/many occasions (circle one).

6. On occasion some customers did spill some of those
beverages before leaving the store.

7. I also have witnessed numerous slip and f[a]ll
incidents in the same area.

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 On April 1, 2021, the judge denied plaintiff's opposed motion on the

papers. Citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), the

judge found plaintiff's submission failed to demonstrate "there were facts

overlooked or that the court erred." This appeal followed. 5

Before us, plaintiff initially contends the judge should have granted

reconsideration because Vallie's affidavit contained "new information"

"concerning the access customers had to beverage bottles, the immediate

opening and consumption of same leading to spills and slip and fall incidents."

She claims her motion to extend discovery should have been granted in the

interests of justice. Plaintiff further contends the application of the mode-of-

operation rule relieved her of the burden of proving defendant's actual or

constructive notice of the condition. She argues a genuine dispute of material

facts exists as to whether slip and fall accidents often occurred where she fell

because of spills from bottles purchased from defendant's self-service

refrigerator display.

5
Prior to filing its responding brief, defendant moved for a temporary remand
for the motion judge "to provide findings of fact and conclusions of law relating
to the April 1, 2021 order under review." We denied the motion, stating: "The
judge's order is a statement of reasons and conclusion. R. 1:7-4(a). If the merits
panel decides otherwise, it may appropriately address the issue at that time."
Because the parties have not raised this issue further on this appeal, we discern
no reason to disturb our earlier decision.
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 II.

As a preliminary matter, we address defendant's procedural contention

that because plaintiff's notice of appeal and case information statement only

reference the April 1, 2021 order denying reconsideration, we should refuse to

review the February 19, 2021 summary judgment and discovery extension

orders. Defendant's argument implicates Rule 2:5-1(e).

Rule 2:5-1(e)(3)(i) provides: "In civil actions the notice of appeal . . .

shall designate the judgment, decision, action or rule, or part thereof appealed

from . . . ." Pertinent to this appeal, the comment to the Rule informs, when the

notice of appeal "designates only the order entered on a motion for

reconsideration, it is only that proceeding and not the order that generated the

reconsideration motion that is reviewed." Pressler & Verniero, Current N.J.

Court Rules, cmt. 5.1 on R. 2:5-1 (2022). We have therefore declined to reach

the merits of an appeal when the notice of appeal failed to designate the

summary judgment order. See, e.g., W.H. Industries, Inc. v. Fundicao

Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008); Fusco v. Bd. of

Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div. 2002).

However, in Kornbleuth v. Westover, 241 N.J. 289, 299 (2020), the

Supreme Court affirmed our decision to "generously" consider the plaintiffs'

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challenges to the trial court's summary judgment and reconsideration orders

even though the notice of appeal only identified the order denying the plaintiffs'

reconsideration motion. Moreover, the comments to the Rule further state:

"Inasmuch as the case information statement must be filed with the notice of

appeal, failure to identify an issue in the notice of appeal may be saved by

identification in the case information statement filed with the notice of appeal."

Pressler & Verniero, cmt. 5.1 on R. 2:5-1; see also Synnex Corp. v. ADT Sec.

Servs., Inc., 394 N.J. Super. 577, 588 (App. Div. 2007) (reviewing a

reconsideration order that was identified in the case information statement but

not the notice of appeal).

Here, unlike Synnex Corp., the February 19, 2021 orders were not

expressly identified in plaintiff's notice of appeal or case information statement.

Although we have in the past declined to review appeals in their entirety because

of this type of record deficiency and rule violation, we have elected to treat this

matter indulgently notwithstanding plaintiff's noncompliance. Notably,

plaintiff's case information statement sets forth all arguments raised in her brief,

including those challenging the judge's decision on summary judgment. Further,

plaintiff has provided the transcript of the summary judgment hearing.

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 III.

Turning to plaintiff's substantive claims, we first address, as did plaintiff,

her motion for reconsideration. We review a trial court's order on

reconsideration against an abuse of discretion standard. Branch v. Cream-O-

Land Dairy, 244 N.J. 567, 582 (2021).

A party may move for reconsideration of a court's decision pursuant to

Rule 4:49-2, on the grounds that (1) the court based its decision on "a palpably

incorrect or irrational basis," (2) the court either failed to consider or "appreciate

the significance of probative, competent evidence," or (3) the moving party is

presenting "new or additional information . . . which it could not have provided

on the first application." D'Atria, 242 N.J. Super. at 401; see also Cummings v.

Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

The moving party "must initially demonstrate that the [c]ourt acted in an

arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage

in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401. A

motion for reconsideration is not an opportunity to "expand the record and

reargue a motion." Cap. Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super.

299, 310 (App. Div. 2008). Rather, it "is designed to seek review of an order

based on the evidence before the court on the initial motion, not to serve as a

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vehicle to introduce new evidence in order to cure an inadequacy in the motion

record." Ibid. (citation omitted).

In the present matter, plaintiff's belated production of Vallie's affidavit

was an attempt to expand the record and reargue the original motion. The record

does not reveal why plaintiff could not have produced the affidavit or deposed

Vallie within the discovery period. Plaintiff was aware of Vallie's identity upon

her receipt of his incident report during the discovery period. Although as we

noted above, plaintiff could not recall when she obtained the report, at the very

latest, it was provided with defendant's answers to Form C interrogatories.

Plaintiff has offered no explanation as to why she could not have obtained

Vallie's statement prior to the expiration of the 540-day discovery period.

Vallie's statement was not new evidence as his identity was known during that

extended period. See Kornbleuth, 241 N.J. at 308. We therefore conclude the

motion judge did not abuse his discretion by denying plaintiff's motion for

reconsideration of the summary judgment motion.

Nor are we persuaded that the judge should have reconsidered the order

denying plaintiff's motion to extend discovery. Plaintiff generally argues the

motion judge should have granted her reconsideration motion in the "interests

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of justice" in view of the unusual circumstances occasioned by the COVID-19

pandemic. Again, we disagree.

Commencing with its March 27, 2020 order, our Supreme Court extended

discovery deadlines in civil matters through and including May 28, 2020.

COVID-19 Coronavirus–Supreme Court's March 27, 2020 Omnibus Order

Continuing the Suspension of Court Proceedings and Extending Deadlines and

Timeframes through April 26, 2020 ¶ 3 (Mar. 27, 2020); COVID-19–Second

Omnibus Order on Court Operations and Legal Practice ¶ 3 (Apr. 24, 2020);

COVID-19–Third Omnibus Order on Court Operations and Legal Practice ¶ 3

(May 28, 2020). The Court's subsequent omnibus orders entered on June 11,

June 25, July 9, July 24, and September 17, 2020 did not further extend

discovery end dates in civil cases.

Here, plaintiff did not file her motion to extend discovery until January

25, 2021, nearly eight months after the Court's third omnibus order was entered.

Nor does the record contain any sworn statement that the circumstances of the

pandemic prevented plaintiff from noticing Vallie's deposition within the 540-

day discovery period and before the December 31, 2020 deadline for deposing

fact witnesses. The only certifications of plaintiff and her attorney in the record,

which were made in opposition to defendant's summary judgment motion, make

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no mention of the pandemic. Moreover, recognizing the present discovery order

"was entered during the period regarding the COVID situation," the motion

judge rhetorically asked why "COVID [would] be an excuse" for failing to

comply with the discovery order that was entered during the pendency of the

Court's omnibus COVID orders. Based on the lack of evidence in the record

convincing us otherwise, we discern no reason to disturb that decision.

We therefore turn to the Rule governing discovery extensions. In the

absence of the opposing party's consent to extend discovery under Rule 4:24-

1(c), a trial court may grant the requesting party's motion on the demonstration

of "good cause," unless "an arbitration or trial date is fixed," which triggers the

demonstration of "exceptional circumstances." As we have recently held,

however: "[W]hen the court chooses to send out arbitration and trial notices

during the discovery period, judges evaluating a timely motion to extend

discovery may not utilize the 'exceptional circumstances' standard, but rather the

judge 'shall enter an order extending discovery' upon a showing of 'good cause.'"

Hollywood Café Diner, Inc. v. Jaffee, ___ N.J. Super. ___, ___ (App. Div. 2022)

(slip op. at 13) (quoting R. 4:21-1(c)). Construing the Rule, we stated our

interpretation was "consonant with its plain language and gives meaning to all

its terms, is consistent with the purposes of other rules designed to set realistic

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trial dates, and favors the general policy of adjudicating litigation on its merits."

Ibid.

In the present case, plaintiff did not notice Vallie's deposition until

January 21, 2021, and did not move to extend discovery until January 25, 2021

– nearly one month after the December 31, 2020 deadline for deposition of fact

witnesses. While we recognize plaintiff's motion was filed before the January

30, 2021 discovery end date, plaintiff was aware of Vallie's identity upon her

receipt of his incident report, which was personally obtained by her and provided

to her with defendant's interrogatory responses, within the discovery period.

Thus, we conclude plaintiff failed to meet the "good cause" standard enunciated

in Hollywood Café.

IV.

Nor are we persuaded by plaintiff's overlapping arguments that the motion

judge erroneously dismissed her complaint on summary judgment. Plaintiff

contends the mode-of-operation rule applies to defendant's single-serve

beverage refrigerator located in the checkout area. She also asserts the

refrigerator display constitutes a self-serve mode-of-operation because patrons

are permitted to take the beverages from the display "for immediate

consumption." Plaintiff argues Vallie's affidavit demonstrates defendant had

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prior notice that other patrons slipped and fell in the same area after purchasing

and opening self-serve beverages between the cash register and exit. Plaintiff's

contentions are unavailing.

We review the trial court's decision on summary judgment de novo,

applying the same standard used by the trial court. RSI Bank v. Providence Mut.

Fire Ins. Co., 234 N.J. 459, 472 (2018). We must determine "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." Brill,

142 N.J. at 540; see also Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

406 (2014). We owe no deference to the trial court's legal analysis. Palisades

At Fort Lee Condo. Ass'n v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017).

To sustain a negligence claim, a plaintiff must demonstrate: (1) a duty of

care, (2) that the duty has been breached, (3) proximate causation, and (4) injury.

Townsend v. Pierre, 221 N.J. 36, 51 (2015). The plaintiff bears the burden of

proving negligence, see Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App.

Div. 2004), and "must prove that unreasonable acts or omissions by the

defendant proximately caused his or her injuries," Underhill v. Borough of

Caldwell, 463 N.J. Super. 548, 554 (App. Div. 2020).

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 The required elements of a negligence claim in the context of a business

invitee's slip and fall at a defendant's premises are well established. A plaintiff

must prove by a preponderance of the evidence: (1) defendant's actual or

constructive notice of a dangerous condition; (2) lack of reasonable care by

defendant; (3) proximate causation of plaintiff's injury; and (4) damages.

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993); see also Prioleau v.

Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015); Nisivoccia v. Glass Gardens,

Inc., 175 N.J. 559, 563 (2003).

When the mode-of-operation doctrine applies, a plaintiff is relieved of

demonstrating the defendant's actual or constructive notice of a dangerous

condition on its premises. See Model Jury Charges (Civil), 5.20F-11, "Mode of

Operation Rule" (approved Mar. 2000, modified Apr. 2016). The doctrine

applies when a "dangerous condition is likely to occur as the result of the nature

of the [defendant's] business, the property's condition, or a demonstrable pattern

of conduct or incidents." Nisivoccia, 175 N.J. at 563. More particularly, when

the defendant's business has a "self-service method of operation," the defendant

is required to anticipate debris falling on the ground resulting from "the

carelessness of either customers or employees." Id. at 564.

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 In the present matter, defendant permitted its customers to help

themselves to beverages contained in a refrigerator display. Accordingly,

defendant's business meets the definition of self-service. See Prioleau¸ 223 N.J.

at 262 (limiting the mode-of-operation rule to "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") . However,

the rule applies only to accidents occurring in areas
affected by the business's self-service operations,
which may extend beyond the produce aisle of
supermarkets and other facilities traditionally
associated with self-service activities. The dispositive
factor is not the label given to a particular location, but
whether there is a nexus between self-service
components of the defendant's business and a risk of
injury in the area where the accident occurred.

[Id. at 262 (emphasis added) (citations omitted).]

Plaintiff contends that applying summary judgment standards, reasonable

inferences from the motion record evidence demonstrated such a nexus. After

the briefs were filed, defendant filed a supplemental brief, pursuant to Rule 2:6-

11(d), citing the Supreme Court's decision in Jeter v. Sam's Club, 250 N.J. 240,

244 (2022). Defendant argues "Jeter's holding forecloses the possibility that a

merchant can be subject to a mode of operation[] charge where it sells only

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sealed merchandise and does not actively encourage customers to open products

in the store." Further, "[m]ere knowledge that customers occasionally open and

spill products sold in sealed containers is not enough to support a mode of

operation[] charge."

In Jeter, the plaintiff slipped and fell on loose grapes, sustaining bodily

injury. Id. at 244-45. The Court expressed "[s]elling grapes in this manner does

not create a reasonably foreseeable risk that grapes will fall to the ground in the

process of ordinary customer handling." Id. at 244. The Court distinguished the

facts in Jeter from other decisions where it found the mode-of-operation rule

applied:

Unlike the facts of Bozza,[6] where customers were
permitted to carry food and beverage items without lids,
tops, or trays around a self-service cafeteria, 42 N.J. at
358, or Nisivoccia, where customers handled grapes
packaged in open-top, vented plastic bags, "a dangerous
condition for an unsuspecting customer walking in that
area," 175 N.J. at 565, customers at Sam's Club were
not intended to handle the grapes or package the grapes
themselves. They were intended only to handle the
closed grape containers.

[Id. at 256 (emphasis added).]

6
Bozza v. Vornado, Inc., 42 N.J. 355 (1964).
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 The Court affirmed our decision, which found the plaintiff had satisfied

two of the three elements of the mode-of-operation rule: "[I]t was 'undisputed

that [the] defendant operated a self-service business' and the location of [the]

plaintiff's fall bore a relationship to the self-service component of the store." Id.

at 248. Similar to our decision, however, the Court concluded the plaintiff failed

to demonstrate a nexus between her "fall on grapes and Sam's Club's self-service

sale of grape containers." Id. at 257. The Court reasoned: "Customers and

Sam's Club employees were not intended to handle the grapes, and the grapes

were packaged and sold in sealed clamshell containers secured by tape – a

method that posed virtually no chance of spillage during ordinary, permissible

customer handling." Ibid.

Notably, the Court found "unpersuasive [the] plaintiff's argument that

Sam's Club knew its customers occasionally opened the grape containers in

store." Ibid. The Court reasoned "Sam's Club sold grapes in secure packaging

that posed no foreseeable risk that grapes would end up on the floor." Ibid. The

Court also cited the testimony of the defendant's assistant store manager "that

Sam's Club did not permit customers to open the containers in store, and that

doing so was tampering with the product." Ibid.; see also Ryder v. Ocean Cnty.

Mall, 340 N.J. Super. 504, 507-09 (App. Div. 2001) (finding a nexus between

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the plaintiff's fall on liquid from an "Orange Julius" drink and the defendant

mall because "[t]here was evidence that the Mall [did] not restrict the carrying

of, or consumption of, food and drink anywhere in the common areas" thus

becoming the "functional equivalent of a cafeteria").

Not unlike the closed clamshell containers in Jeter, the beverages

contained in the refrigerator display in the present case were sealed and sold in

a manner providing "virtually no chance of spillage during ordinary, permissible

customer handling." 250 N.J. at 257. There was no evidence supporting an

inference that any of the bottles in the refrigerator were opened and spilled by

another customer prior to plaintiff's fall. Nor did the record on summary

judgment contain any evidence that defendant's business practice permitted its

sealed self-serve beverages to be opened and consumed on the premises. See

id. at 256. Thus, plaintiff failed to provide the necessary "nexus between the

dangerous condition and defendant's mode of operation." Ibid.

Even if plaintiff had timely provided Vallie's affidavit, we are not

persuaded his statement supported defendant's "practice" of permitting its

customers to open and consume beverages in the store, as plaintiff argues.

Vallie stated only that "[o]n occasion some customers did spill some of those

beverages before leaving the store." But Vallie failed to indicate how often he

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had seen patrons open the beverages at the register, or whether the slip and fall

accidents he witnessed "in the same area" where plaintiff fell were attributable

to the self-serve beverages opened at the counter. Notably, Vallie did not state

defendant regularly permitted the beverages to be opened and consumed in the

store. Thus, there is no evidence in the record that defendant permitted the

beverages to be opened and consumed on the premises as a part of its business

operation. See Ryder, 340 N.J. Super. at 507-09.

Because the mode-of-operation rule did not apply in this case, plaintiff

must satisfy her burden of proof under traditional negligence principles.

Relying on Vallie's affidavit, plaintiff contends defendant had prior notice of the

dangerous condition.

To establish a claim for premises liability, the plaintiff must show "the

defendant had actual or constructive notice of the dangerous condition."

Nisivoccia, 175 N.J. at 563. Actual notice refers to "notice given directly to, or

received personally by, a party." Black's Law Dictionary 1277 (11th ed. 2019).

A defendant has constructive knowledge "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

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Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957)).

"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) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div.

1990)).

Affording plaintiff all favorable inferences and presuming the presence of

the liquid on defendant's floor, the record is devoid of any evidence establishing

the source of the substance or how long it was present before plaintiff's fall. No

photographs or video footage depicted the substance on the date of the incident.

Referencing his incident report, Vallie's affidavit only claims plaintiff slipped

on a liquid on the floor, but he did not indicate defendant was on notice of any

spilled liquid near the store's exit before plaintiff's fall.

To the extent not specifically addressed, plaintiff's remaining contentions

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

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