ELIZABETH VALENTIN v. TOYS "R" US, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3326-07T33326-07T3

ELIZABETH VALENTIN and

ARMINDO MARTINEZ, her husband.

Plaintiffs- Appellants,

v.

TOYS "R" US, INC.,

Defendant-Respondent.

_____________________________________________

 

Submitted November 16, 2009 - Decided

Before Judges Rodr guez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2205-06.

Kotlikoff Kafrissen, attorneys for appellants (Samuel F. Kafrissen, on the brief).

Psak & Associates, attorneys for respondent (Robert A. McLarty, Jr., on the brief).

PER CURIAM

Elizabeth Valentin and her husband Armindo Martinez appeal from the summary judgment dismissing their claim against respondent Toys "R" Us, Inc. (Toys "R" Us). We reverse.

The facts viewed in the light most favorable to Valentin and Martinez, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), are as follows: On July 8, 2004, Valentin slipped and fell in a Toys "R" Us store in Cherry Hill. It was a clear, typical summer day. Valentin was walking toward the aisle where car seats were located when she slipped on a jelly-like substance. In her deposition, she testified that the substance looked like the type of jelly used during a sonogram. The amount of jelly where she fell covered a two-foot area. She saw more of the substance about twenty-five feet away, and that spot was about as thick as her finger and "it [looked] as if a bucket or some kind of container had broken."

Martinez witnessed her fall. In his deposition, he said the substance on the floor was a "a little long, but it wasn't really that wide. It was narrow." Both Valentin and Martinez testified that an assistant store director immediately came to assist them, promptly cleaned up the spill, and called an ambulance. Valentin suffered leg and back injuries that persist to this day, making it difficult for her to sit for any period of time. She frequently needs pain pills.

The assistant store director called the police. Officer J. Lafferty arrived and completed a police report, stating that the assistant store director told him there were a few drops of liquid substance on the floor spread out over approximately four aisles. It looked like water, but was oily when touched. Lafferty's inspection revealed that no liquid products were sold in the area where Valentin fell.

Valentin and Martinez sued Toys "R" Us, alleging negligence and loss of consortium. At an arbitration hearing, the arbitrator found Toys "R" Us liable for two-thirds ($30,000) of a $45,000 damage award. Toys "R" Us moved for a trial de novo, pursuant to Rule 4:21A-6(c).

Toys "R" Us then moved for summary judgment. The judge granted the motion, holding that the burden-shifting line of "supermarket" slip-and-fall cases, such as Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966), did not apply because the burden-shifting mechanism has not been extended to a non-supermarket setting. He further concluded that if Valentin had indeed been injured by a Toys "R" Us product on the floor, "this is a self-service business and there should be no reason not to extend [Wollerman]."

Valentin's counsel argued that the store has a whole section that sells "baby items, formula, [and] different things along those lines." The judge said that such a fact, if correct, "does make the issue more murky" but found "the [only] common sense inference I get from [the record] is that [Toys "R" Us] . . . sells toys." The judge found that no reasonable jury could find that the liquid substance was a product sold by Toys "R" Us because there was "no reason to conclude that Toys "R" Us sells anything other than toys."

On appeal, Valentin contends the trial court erred in granting summary judgment in favor of Toys "R" Us because due to "the extensive nature of the liquid/defect . . . a jury could reasonably conclude that the defendants were negligent in maintaining the area for patrons lawfully thereupon the premises." Toys "R" Us argues that summary judgment was proper because Valentin failed to identify the identity of the substance, provided no proof that Toys "R" Us sold such a product, and produced no evidence to prove that Toys "R" Us had actual or constructive knowledge of the dangerous condition.

A business owner has a duty to provide a safe environment for its invitees. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). This duty of care "requires a business owner 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. A business is generally not liable for injuries caused by dangerous conditions of which they were not aware. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). Thus, ordinarily the burden is upon the plaintiff to prove "that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563. Constructive knowledge will be found "if the condition had existed for such a length of time that [the business owner] should have known of its presence." Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964)).

When the very nature of a business's operation creates the hazard, however, the "mode-of-operation rule" creates an inference of negligence and "the burden shifts to the defendant to 'negate the inference by submitting evidence of due care.'" Nisivoccia, supra, 175 N.J. at 564 (quoting Bozza, supra, 42 N.J. at 360). This inference relieves the plaintiff of proving that the defendant had actual or constructive notice of the dangerous condition and instead requires the defendant to show it did "all that a reasonably prudent man would do in light of the risk of injury [the mode of operation] entailed." Wollerman, supra, 47 N.J. at 429. If the defendant provides no explanation, the facts presented by the plaintiff should allow a jury to find "from the condition of the premises and the nature of the business that [the defendant] did not exercise due care in operating the [business], and that said negligent operation was the proximate cause of [the plaintiff's] injuries." Bozza, supra, 42 N.J. at 359.

The judge found that the Wollerman, supra, 47 N.J. 426, line of cases did not apply because no subsequent cases have extended that holding to a "non-supermarket setting." This is incorrect. Traditionally, the mode-of-operation rule has applied most often to supermarket or cafeteria settings. See, e.g., Nisivoccia, supra, 175 N.J. 559 (slip on grapes near supermarket checkout lanes); Wollerman, supra, 47 N.J. 426 (slip on a green bean on floor of supermarket); Bozza, supra, 42 N.J. 355 (slip on slimy substance on floor of self-service cafeteria); Ryder v. Ocean County Mall & Corp. Prop. Investors, 340 N.J. Super. 504 (App. Div.) (slip on spilled beverage from food court in shopping mall), certif. denied, 170 N.J. 88 (2001). However, the rule also has been applied to other self-service merchandisers. See, e.g., Craggan v. IKEA USA, 332 N.J. Super. 53 (App. Div. 2000) (trip on string in self-help loading area); O'Shea v. K. Mart Corp., 304 N.J. Super. 489 (App. Div. 1997) (golf bag fell from shelf and hit plaintiff); Krackomberger v. Vornado, Inc., 119 N.J. Super. 380 (App. Div. 1972) (slip on clear plastic apparel coverings on floor from rack in retail store). Thus, clearly the judge was incorrect in concluding that the mode-of-operation rule could not apply to a self-service retailer such as Toys "R" Us.

In all of the burden-shifting cases cited above, the defendants did not dispute that they sold the product on which the plaintiffs had slipped. Here, Valentin conducted very little discovery and no evidence has established that Toys "R" Us sold the actual jelly-like substance that was on the floor. Valentin's counsel suggested that Toys "R" Us sold "baby items, formula, [and] different things along those lines," but the judge found "no reason to conclude that Toys "R" Us sells anything other than toys." He further found that no reasonably jury "could conclude [Valentin] slipped on a substance sold by Toys "R" Us." We disagree.

In Valentin's deposition she testified that she fell in the aisle displaying infant car seats, which contradicts the judge's conclusion that Toys "R" Us sold only toys. Her counsel argued that the store sold baby formula and other items "along those lines." Officer Lafferty's report indicates only that "no liquid items were sold in the area of the fall," not that there were no liquid products sold by the store. In fact, Officer Lafferty suggested that the liquid "appeared to be from an unknown leak in another patron's merchandise or personal property," which suggests that such substances were sold elsewhere in the store. In addition, Valentin said that about twenty-five feet from her fall, there was a substantial amount of the substance and it looked "as if a bucket or some kind of container had broken." Giving all favorable inferences to Valentin, Brill supra, 142 N.J. at 523, we find that she has presented sufficient circumstantial evidence that could allow a jury to conclude that Toys "R" Us sold the product on which she slipped.

Further, the equitable considerations that underlie the mode-of-operation cases apply to the present case and justify shifting the burden to Toys "R" Us. After Valentin fell, a store manager quickly cleaned up the mess, leaving Valentin with only her visual recollection to identify the substance. As a result, Valentin is "hardly in a position to know precisely [what] was the neglect." Wollerman, supra, 47 N.J. at 429. "It is just, therefore, to place `the onus of producing evidence upon the party who is possessed of superior knowledge or opportunity for explanation of the causative circumstances.'" Ibid. (quoting Kahalili v. Rosecliff Realty, Inc., 26 N.J. 595, 606 (1958)). Because the store's self-service mode of operation is "designed to allow the patron to select and remove the merchandise from the [shelves] without intervention from any employee of the storekeeper," the burden should shift to Toys "R" Us to prove it took "reasonable measures to guard against injuries to customers." Craggan, supra, 332 N.J. Super. at 62.

We owe no special deference to the judge's finding that the Wollerman burden-shifting cases did not apply. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Even if the judge were correct that the burden remained with Valentin, he never ruled on the constructive notice issue. Given that the substance was spread out over four aisles of the store, in our view the evidence was sufficient to create a question for the jury of whether Toys "R" Us had constructive notice of the spilled substance. See, e.g., Canales v. Dominick's Finer Foods, Inc., 416 N.E.2d 303, 306-08 (Ill. App. Ct. 1981) (finding evidence sufficient to establish constructive notice where tube of ointment fell off shelf, became dislodged from boxed packaging, and was tracked over a one-by-three-foot area); H.E. Butt Grocery Co. v. Heaton, 547 S.W.2d 75 (Tex. Civ. App. 1977) (finding sufficient evidence of constructive notice where grapes were smashed on the floor in a twelve-inch diameter and there were foot prints and shopping cart tracks present).

 
Therefore, we reverse the grant of summary judgment and remand for trial.

Toys "R" Us argues "[Valentin] does not appeal the trial court's conclusion of law that the 'supermarket standard' does not apply to this case. . . . [Thus,] that conclusion of the trial court is not at issue herein." We disagree. It is true that Valentin's brief does not directly addresses the judge's holding that Wollerman, supra, 47 N.J. 426, did not apply. She does, however, make a general argument that "a jury could reasonably conclude that Toys "R" Us [was] negligent in maintaining the area for patrons." Moreover, even where an appellant does not raise an issue, we may still address it "where upon the total scene it is manifest that justice requires consideration of an issue central to a correct resolution of the controversy and the lateness of the hour is not itself a source of countervailing prejudice." Ctr. for Molecular Med. and Immunology v. Twp. of Belleville, 357 N.J. Super. 41, 48 (App. Div. 2003) (quoting In Re Appeal of Howard D. Johnson Co., 36 N.J. 443, 446 (1962)).

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A-3326-07T3

July 15, 2010