CANDACE CARNEY v. PAYLESS SHOESOURCE, INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2680-07T22680-07T2

CANDACE CARNEY & PATRICK

CARNEY, w/h,

Plaintiffs-Appellants,

v.

PAYLESS SHOESOURCE, INC.,

Defendant-Respondent.

__________________________

 

Argued October 6, 2008 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-10192-05.

Ronald A. Kovler argued the cause for appellant (Kovler & Rush, P.C., attorneys; Brad S. Rush, on the brief).

Lawrence F. Rosello argued the cause for respondent (Gaul, Baratta & Rosello, L.L.C., attorneys; Mr. Rosello, of counsel and on the brief; Jonah M. Block, on the brief).

PER CURIAM

Plaintiff, Candace Carney, tripped over a two-foot tall by two-foot wide shoe bench on December 8, 2003, at a retail store operated by defendant, Payless Shoesource, Inc. Plaintiff's subsequent personal injury action, filed in the Law Division, was dismissed on defendant's application for summary judgment. We affirm.

Under the familiar standard, summary judgment must be granted if "the pleadings, depositions, 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). "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Despite analyzing the record in the light most favorable to plaintiff, the motion judge nonetheless found no genuine issues of material fact nor any basis for imposing liability on defendant as a matter of law. Although defendant had a duty to inspect the premises and to make repairs for defects that were known or should have been known, there was no basis upon which the judge could conclude that a breach of that duty had occurred.

In addition to asserting a theory of ordinary negligence, plaintiff contends that she is entitled to an inference of negligence because the store knew or should have known that their use of the portable shoe benches created a dangerous condition. In other words, plaintiff sought to invoke the mode-of-operation rule. See Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966). "Business owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). That duty of care requires business owners to "discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe." Ibid. Where an injured plaintiff can prove that "as a matter of probability," a dangerous condition may result from the "nature of the business," he or she is relieved of the obligation to prove that the defendant had actual or constructive knowledge of the circumstances that caused the injury. Ibid.

This is not a situation, however, in which the mode-of-operation rule applies. In spillage cases, for example, involving substances on the floor of the produce aisle of a supermarket, the potential hazard is not readily noticeable to a patron whose attention is naturally focused elsewhere. It is probable that produce will fall on the floor in that business. That patrons may step on slippery substances because they are looking at shelves or in bins is a known hazard. But in this case, the shoe benches are quite large and readily noticeable.

The two-foot by two-foot portable shoe benches for use by customers who try on merchandise do not raise a substantial risk inherent in defendant's mode of doing business. Any reasonably prudent person would observe, in light of the dimensions of the benches, their presence in his or her lane of travel. See Wollerman, supra, 47 N.J. at 429.

No expert testimony was produced demonstrating that use of the two-foot by two-foot portable shoe benches created a dangerous condition or was contrary to industry standards. There is simply no evidence in this record establishing either ordinary negligence on the part of defendant or that plaintiff is entitled to any inference based on the mode-of-operation doctrine.

Defendant correctly relies on Znoski v. Shop-Rite Supermarkets, Inc., 122 N.J. Super. 243 (App. Div. 1973). In Znoski, plaintiff was injured when he was struck in the back by a shopping cart outside the doors of a supermarket. Id. at 245. Plaintiff argued that the business owner should have anticipated the carelessness of customers using the carts and the possibility of injury. Id. at 247. We found, to the contrary, that shopping carts are not dangerous instrumentalities, but rather, are tools of convenience uniquely suited for the purpose for which they have been furnished. Id. at 247-48. We said, "Every human activity involves some risk of harm, but the reasonable probability of having other than a minor accident from the use of carts in Shop-Rite's operation does not give rise to a duty to take measures against it." Id. at 248.

Similarly, the use of the shoe benches did involve some risk of harm, but not to an extent that a duty to take measures against the harm was created. As the motion judge said:

[T]he use of the bench, the moveable bench, for purposes of patrons trying on their shoes does not constitute a, per se, dangerous condition nor in conjunction with the other allegations does it constitute a dangerous condition and, therefore, . . . plaintiff must come forward with evidence that there was negligence on the part of the Payless store. The only indication is that some employees may have tripped over benches in the past and that, in my view, is not sufficient to establish that the defendants were . . . negligent.

 
We agree. Affirmed.

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A-2680-07T2

February 24, 2009