IRENE ALEXANDROW v. YARDVILLE NATIONAL BANK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4595-08T34595-08T3

IRENE ALEXANDROW,

Plaintiff-Appellant,

v.

YARDVILLE NATIONAL BANK and

CINTAS CORPORATION (i/p/a

CINTAS),

Defendants-Respondents.

 
 

Argued November 18, 2009 - Decided

Before Judges Graves and J.N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7494-07.

John M. Vlasac, Jr., argued the cause for appellant (Vlasac & Shmaruk, L.L.C., attorneys; Mr. Vlasac, of counsel and

on the brief; Jeffrey Zajac, on the brief).

John E. LaMastra argued the cause for respondent Yardville National Bank (Daly, LaMastra & Cunningham, attorneys; Olivier J. Kirmser, on the brief).

Joseph G. Fuoco argued the cause for respondent Cintas Corporation (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Michael B. Devins, of counsel and on the brief; Mr. Fuoco, on the brief).

PER CURIAM

This is a premises liability action involving a bank branch, a carpeted floor mat, a fall, and ensuing personal injuries. Plaintiff Irene Alexandrow appeals the May 1, 2009 orders of the Law Division granting summary judgment, thereby dismissing her complaint against defendants Yardville National Bank (Yardville) and Cintas Corporation (Cintas). Finding no errors in the dual determinations of Judge Vincent Le Blon, we affirm.

The underlying facts are neither complicated nor materially disputed. Because plaintiff's appeal raises the specter of error committed during summary judgment motion practice Rule 4:46 we recite the facts giving all favorable inferences to plaintiff. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (summary judgment standards apply on appeal in the same way that they apply in the trial court); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (requiring that we must "consider 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[]").

Yardville operated a branch bank office at 145 West Main Street in Somerville. It provided both a front and a rear entrance to accommodate foot traffic into the facility. The rear entrance door opened into a vestibule in which was placed a carpeted floor mat that was not secured to the underlying surface. Only friction and gravity held the floor mat in place.

Cintas and Yardville had a contractual relationship, memorialized by a written Facility Services Rental Service Agreement, whereby Cintas supplied carpeted floor mats to Yardville on a weekly basis for the Somerville location. Cintas delivered and placed a carpeted floor mat in Yardville's rear entrance vestibule without the guidance or assistance of Yardville's employees. An invoice, dated July 2, 2007, indicated that Cintas supplied a four-foot by six-foot carpeted floor mat to Yardville. The precise date that it was placed in the vestibule is unknown.

One of Yardville's employees testified in a deposition that occasionally the carpeted floor mat in the vestibule would not remain in the middle where it was placed. It was sometimes moved, and could get caught in the door and then be straightened:

Q. And earlier I believe you said you had occasion to observe sometimes the door the carpet would get stuck in the door? Did you ever observe that?

A. Yes. If it moved, I would have to pull it back, yes.

Q. Okay. And you said your belief is sometimes the door would catch the carpet?

A. If the mat had moved. But usually they were placed in the middle.

Q. Okay.

A. Okay? It would have to be somebody pulled it or did something or maybe brought something in the bank, you know, like maybe Brink's or something, I don't know, and then we'd have to straighten it. It didn't happen often.

Prior to her fall, plaintiff had been a customer of the Yardville's Somerville branch. Until July 2, 2007, she had never before entered the location using the rear entrance door. However, on that date, she entered the branch through the rear, began to navigate the vestibule, and fell down, suffering personal injuries.

Besides plaintiff, there were no eyewitnesses to the event. Yardville's video security cameras did not capture the fall. In her deposition, submitted to the motion judge, plaintiff described the incident as the following:

Q. Could you describe to me what steps you took from the car to the to the bank?

A. How many steps?

Q. No. When you walked out of the car, did you walk straight to the bank? did you go anywhere else first?

A. No. I there's like a little vestibule there, and I walked in there, and I fell.

Q. All right. Do you know why you fell? You're shaking your head no. You have to answer the question.

A. I step on the I step on the there was a carpet there. I step on the carpet, and I fell.

Q. All right. But how did you step on the carpet? Which foot did you first step on the carpet with?

A. The right foot.

Q. Okay. And then what happened?

A. And then I fell.

Q. Do you know why you fell though?

A. I must have caught it or something.

Q. Well, you must have gotten caught or something, is that your answer?

A. Yeah.

Q. Do you know why as you sit here today, do you know if you got caught on something?

A. I assumed that I caught on something.

Q. But do you know that for sure?

A. But that was going into the bank. I didn't think of anything else.

Q. Okay. Did you feel anything under you?

A. I felt the carpet.

Q. Well, but did you feel getting caught on something?

A. Later on, when they picked me up, I could see that it was it was curled up.

Q. The carpet was curled up?

A. A little bit, yes.

Q. Where was it curled up?

A. On the right side.

Q. And were you walking on the right side of the carpet or were you walking straight?

A. Well, I was walking straight.

Later in her deposition, plaintiff testified as follows:

Q. Now, you mentioned, you stated before the carpet was curled up. Did you see the carpet being curled up before you fell?

A. No.

Q. When did you notice that again?

A. When they picked me up.

Q. When who picked you up?

A. The Somerset Hospital Rescue Squad.

Q. Did you point it out to them that the carpet was curled up?

A. What?

Q. Did you tell the people from the rescue squad that the carpet was curled up?

A. No.

Finally, plaintiff stated at the deposition:

Q. Did you feel something catch your foot on the day of the accident when you fell?

A. When I fell I didn't feel anything.

. . . . .

Q. Okay. When did you when did you know that your foot got caught on the mat and that's what caused you to fall?

A. When I fell.

Q. When you fell. But what made you come to that conclusion? Did you feel your foot get caught on the mat and that's what sent you forward?

A. Because I usually walk real real good, and I never had that, that I fell just walking.

Q. Okay. And it was afterwards that you saw that the mat was rolled up?

A. Yes. Yes.

After considering the evidentiary record produced by the parties and the arguments of counsel that were proffered at oral argument, Judge Le Blon concluded, "I find and believe that the plaintiff is not able to show that there was a dangerous condition at the time of the accident." He noted as well, "[s]he really cannot say what the problem was with the mats. And the mere happening of an accident is not evidence of negligence." We endorse this view as a correct analysis of the facts as presented and determine that Judge Le Blon properly applied summary judgment jurisprudence when he granted both of Yardville's and Cintas's motions.

On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Feigenbaum v. Guaracini, 402 N.J. Super. 7, 17 (App. Div. 2008) (citing Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2008)). Our standard of review mirrors that of the trial court: whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law. Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 366 (App. Div.), certif. denied, 149 N.J. 409 (1997). In so doing, we use the same standards employed by the trial court to conduct our review. Township of Cinnaminson v. Bertino, 405 N.J. Super. 521, 531 (App. Div.), certif. denied, 199 N.J. 561 (2009). On matters dealing exclusively with a legal question, our review is de novo. Myron Corp. v. Atlantic Mut. Ins. Corp., 407 N.J. Super. 302, 309 (App. Div. 2009).

In order to pursue a viable cause of action for negligence, plaintiff must establish that defendants owed her a duty of care, that defendants breached that duty, and that plaintiff suffered an injury proximately caused by defendants' breach. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). Negligence will not be presumed; rather, it must be proven. Rocco v. N.J. Transit Rail Ops., Inc., 330 N.J. Super. 320, 338-39 (App. Div. 2000). There is a presumption against negligence, and the burden of establishing such negligence is on plaintiff. Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).

A commercial entity such as Yardville was obliged to ensure that those to whom it had made an express or implied business inducement would be reasonably safe when they exercised the invitation. Such an operator has a duty to maintain business premises in a reasonably safe condition for the protection of business invitees. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993). The "standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." Ibid. Moreover, a business owner must "not create any condition which renders the premises dangerous." O'Shea v. K. Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997). Cintas was no less obligated to ensure that when it fulfilled its obligations under the common law and pursuant to the Facility Services Rental Service Agreement, it did so in a non-negligent fashion.

A fall followed by injury is not enough to require a jury trial on a claim of negligence. Plaintiff argues that when viewed through the lens of the totality of the circumstances, the record evidence entitles her to a jury's not a judge's determination on the merits. She asserts that because she is entitled to receive the benefit of all reasonable inferences fairly derived from the motion record, it is reasonable that a trier of fact could agree with her proposition that both defendants breached their respective duties of care. We disagree, as the motion record bespeaks a single, inevitable outcome. Accordingly, the matter was ripe for summary judgment disposition.

The most generous and indulgent interpretation of plaintiff's evidence demonstrates that in the past, the carpeted floor mat that she fell upon had occasionally moved and stuck in the door. Moreover, after the fall, the carpeted floor mat was curled up a little on the right side. For completeness, plaintiff is entitled to the inference that her right foot "must have caught it or something." We cannot discern how this amalgam translates into a breach of duty, much less anything more than an example of an inexorable law of physics: gravity is stronger than bipedalism.

Plaintiff has not presented sufficient competent evidence to withstand a motion for summary judgment. There is not even a whisper of proof concerning the nature of the supposed danger that the horizontal carpeted floor mat posed on the day in question. Plaintiff's arguments invite unseemly conjecture about possibilities, which is foreign to our probability-based jurisprudence. A trier of fact could not reasonably infer that defendants either created a dangerous condition or had constructive notice of a hazardous condition prior to plaintiff's fall. Her advocacy is nothing more than a plea to treat the trip and fall themselves as evidence of defendants' negligence, something we are disinclined (and jurisprudentially not permitted) to do.

Affirmed.

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A-4595-08T3

December 1, 2009