REMEDIOS BIANCA RAMIREZ v. BRISTOL MYERS SQUIBB COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3329-06T23329-06T2

REMEDIOS BIANCA RAMIREZ,

Plaintiff-Appellant,

v.

BRISTOL MYERS SQUIBB COMPANY,

Defendant-Respondent.

____________________________________________________________

 

Submitted December 3, 2007 - Decided

Before Judges Lintner and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-6616-04.

Wysoker, Glassner, Weingartner, Gonzalez &

Lockspeiser, attorneys for appellant (Raul I.

Gonzalez, on the brief).

Monte & Rudolph, attorneys for respondent

(Gary R. Nitsberg, on the brief).

PER CURIAM

Plaintiff Remedios Bianca Ramirez sustained personal injuries when she slipped and fell in a puddle of water in a hallway at building 85A, located on the premises of defendant, Bristol Myers Squibb (BMS), in New Brunswick. At the time of the accident, plaintiff was employed by a cleaning and maintenance company that performed custodial services for BMS. After plaintiff's motion to try the liability issue first was granted, the parties agreed to a bench trial. At the close of plaintiff's case, the court dismissed plaintiff's complaint because there was no evidence that BMS had notice of the allegedly unsafe condition. On appeal, plaintiff contends the court erred by precluding her "from introducing evidence of water leaks in areas other than where she fell." After reviewing the record and the applicable law, we affirm.

Following plaintiff's testimony, the court granted defendant's motion, pursuant to R. 4:37-2(b), to dismiss plaintiff's complaint. The court stated:

Plaintiff in the six months that she worked for Monarch, which was the janitorial company employed by Bristol Myers Squibb, New Brunswick, had always cleaned building 85A. Building 85A has two floors. The [c]ourt has the floor plan marked as P-2 and the photograph marked as P-1. This by the [c]ourt's review of the exhibits as well as plaintiff's testimony is an office building. It has hallways to be mopped, what I would call large institutional type hallways, offices to be dusted and other areas of maintenance. On at least three separate occasions on the work shift of plaintiff of October 18th, 2002, plaintiff arrived at 4:30 p.m. -- I gather that would be on [October] 17th, the start of her shift -- observed no water on the first floor in the area where she ultimately fell. She apparently had cleaned that hallway sometime in the area of approximately 9 p.m. according to her own testimony by cleaning the hallway she said mopping with a mop and some type of a bucket. Plaintiff testified she observed no leak from the ceiling on the first floor and no puddle on the floor at that 9 p.m. time frame.

Plaintiff again went down the area of the hallway another time, that being approximately 11:45 p.m. on October 17th, 2002. Again, plaintiff says I did not see any puddle of water on the floor, I did not observe any leak in the ceiling. That by plaintiff's own testimony was one hour prior to the time that she fell.

Further, plaintiff testified that there were no other human beings in the building at the time that she fell other than a Miss Ruby Lopez, who was a co-employee of plaintiff. Plaintiff conceded that there were no Bristol Myers Squibb employees in the building at approximately 6 p.m. till the time that she fell. . . .

[I]n order to find liability on the part of defendant, in this case Bristol Myers Squibb, there has to be notice of the condition that occurred. And it's my understanding from a prior order on a pretrial motion that any other incidents of leaks are not evidential in the trial before me today, January 16th, and the [c]ourt cannot find based on evidence that has been presented in the trial today, . . . that there is any notice to the defendant, Bristol Myers Squibb, be it actual or constructive under the case law, that there was a hazardous condition where Bristol Myers Squibb would be liable under the law for remedying as a matter of law. . . .

Therefore, there being no notice to Bristol Myers Squibb of the leak that occurred as depicted in P-1, the area depicted in P-1 and P-2, I will grant defendant's motion for a verdict as to no liability on the part of defendant.

On appeal, plaintiff concedes she "did not have any evidence available to indicate that defendant had actual knowledge of the water leak," and she also concedes a defendant is not normally "responsible for injuries caused by water leaks when there is no prior notice for it to take corrective action." Nevertheless, plaintiff argues that defendant was "obviously aware that its building [was] leaking water randomly and spontaneously."

Plaintiff argues that evidence of documented and undocumented water leaks in building 85A, for several months before the accident, show a pattern of water leaks in building 85A that is abnormal. The very fact that water leaks occur throughout the building, without explanation, points to the fact that defendant should have been aware that its building was prone to spontaneous and random water leaks.

The elements necessary to establish a cause of action in a case such as this are clear. "The [landowner] of premises to which the public is invited . . . owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Mkts., Inc., 89 N.J. 270, 275 (1982). Normally, however, the landowner "is not liable for injuries caused by defects of which [it] had no actual or implied knowledge or notice, and no reasonable opportunity to discover." Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984).

Here, there was a failure of proof with regard to notice. Even when viewed in the light most favorable to plaintiff, as we must, the record discloses no evidence of notice. No facts were presented to the judge from which an inference could be reached that defendant had actual or constructive notice of a condition that rendered building 85A "not reasonably safe."

Plaintiff claims the court erred by precluding her "from introducing evidence of water leaks in areas other than where she fell." As a general rule, we do not disturb evidentiary rulings absent a clear abuse of discretion resulting in a manifest denial of justice. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) ("Determinations pursuant to N.J.R.E. 403 should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'") (quoting State v. Carter, 91 N.J. 86, 106 (1982)). In the present matter, the record reveals that defendant was required to provide plaintiff with any work orders "linked to [the] particular area" where the accident occurred. And the court specified that defendant was required to produce work orders "reasonably related to and in the general vicinity of where this fall happened. Whether it's inside, outside, slightly to the left or slightly to the right, who cares. If it's 100 feet away or more, we don't have to worry about it, it's out." Thus, the pretrial order that plaintiff challenges precluded her from introducing prior work orders for building 85A that had "no substantial similarity in location and/or time to plaintiff's alleged accident." In our view, the motion judge's ruling was not an improper exercise of discretion amounting to reversible error. See Wymbs v. Twp. of Wayne, 163 N.J. 523, 536 (2000) ("We hold that prior accidents can be used to prove the existence of a dangerous condition on public property if . . . [there is a] substantial similarity of circumstances between the prior accident and the one involved in the case on trial . . . .").

We also agree that the evidence was insufficient to sustain a cause of action. As noted, it is undisputed that defendant did not have notice of the water spill sufficiently in advance of plaintiff's fall to have eliminated the condition. Moreover, there was no evidence that other persons had slipped and fell in the general area where plaintiff's accident occurred, or that defendant's inspection and maintenance of its premises was deficient.

Affirmed.

 

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A-3329-06T2

January 24, 2008