ANN MIZERAK v. VILLAGE SUPERMARKET

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4360-08T34360-08T3

ANN MIZERAK,

Plaintiff-Appellant,

v.

VILLAGE SUPERMARKET,

d/b/a

SHOPRITE OF UNION-

STORE 261,

Defendant-Respondent.

________________________________________________________________

 

Submitted March 3, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L- 9642-07.

John J. Pisano, attorney for appellant.

Dwyer, Connell & Lisbona, attorneys for respondent (Charles B. Carey, of counsel; Lynn A. Lisbona, on the brief).

PER CURIAM

Plaintiff filed this lawsuit, alleging that she was injured in a slip and fall incident in the defendant supermarket. She appeals from an order granting summary judgment to defendant, dismissing her complaint. We reverse.

The facts, viewed in a light most favorable to plaintiff, can be summarized as follows.

Plaintiff was pushing her shopping cart in the aisle between the bakery and the deli in defendant's supermarket when she slid and fell on November 21, 2007. She held onto the cart as she fell into a split, one leg going to the left and the other going to the right. She landed on her buttocks on the floor. She pulled herself up approximately forty seconds later and then observed "a mess of pumpkin or squash or sweet potato filling, or something of that sort" the size of a round plate on the floor. Although she was able to see the floor prior to her fall, she did not notice the orangey-brown substance until she was pulling herself up.

Plaintiff went to the deli department, told two employees what had occurred and showed them what was on the floor. She stated that the employees came around the counter, took a look at the substance and then one of them returned to the counter to get plastic gloves to scoop up the substance. Plaintiff did not know the names of the deli employees but said both were in their mid-twenties, one an African-American male and the other "Spanish."

Plaintiff went to the courtesy counter, asked to speak to someone in charge and filled out an incident report. She did not know the name of the manager who assisted her but was able to provide a general description and testified that she has seen him at the store since her fall. Although she has returned to the store since her fall, she has not spoken to anyone there about it since then. Neither plaintiff nor defendant has a copy of the incident report that plaintiff says she completed. Defendant has no knowledge of the substance in question or how long it was on the floor prior to plaintiff's fall.

Defendant filed a motion seeking summary judgment on the grounds that plaintiff lacked proof that it had violated any duty to her. The motion was granted and in this appeal, plaintiff argues that summary judgment was inappropriate.

On appeal, a motion for summary judgment is reviewed de novo under the same legal standard applied by the trial court, that is, "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[s] in favor of the non-moving party." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 473 (App. Div. 2008) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. denied, 197 N.J. 476 (2009). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill, supra, 142 N.J. at 523. We accord no deference to the motion judge's conclusions on issues of law, Zabilowicz v. Kelsey, 200 N.J. 507, 512-513 (2009); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007). To defeat summary judgment, the opposing party must present affirmative evidence that is competent, credible and shows that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57, 106 S. Ct. 2505, 2514, 91 L. Ed. 2d 202, 217 (1986).

Business owners owe a duty of reasonable care to provide a safe environment to invitees for doing that which is within the scope of the invitation. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). As a general rule, this duty 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." Bauer v. Nesbitt, 198 N.J. 601, 615 (2009); Jerista v. Murray, 185 N.J. 175, 191 (2005); Nisivoccia, supra, 175 N.J. at 563. To prove a breach of that duty, an injured plaintiff is ordinarily required to prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. E.g., Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984).

However, the Supreme Court has relieved the plaintiff of proving this element "in circumstances in which, as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents." Nisivoccia, supra, 175 N.J. at 563. In such circumstances, the plaintiff is entitled to an inference of negligence and the defendant has the burden of producing "rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard." Id. at 563-64. Because business owners are considered to be in the best position to control the risk of harm, Hojnowski v. Vans Skate Park, 187 N.J. 323, 335 (2006), this application is consistent with the Court's earlier observation of "the salutary effect of shifting the risk of loss" and the costs of preventing harm and "other associated costs of a dangerous activity to those who should be able and are best able to bear them." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 447 (1993). See also Nisivoccia, supra, 175 N.J. at 563; Stelluti v. Casapenn Enters., LLC, 408 N.J. Super. 435, 446 (App. Div.), certif. granted, 200 N.J. 502 (2009); Restatement (Second) of Torts 343 (1965).

The Supreme Court has applied this principle to a plaintiff who alleged negligence arising out of a slip and fall in a supermarket. The plaintiff in Nisivoccia slipped and fell on some loose grapes lying about near the checkout lanes of a supermarket. She was unable to prove how long the grapes were on the floor or how they came to be there. The trial court directed a verdict for defendant and this court affirmed. The Supreme Court reversed, holding that plaintiff was entitled to an inference of negligence because the store should have anticipated that careless handling of grapes was reasonably likely during customer checkout, creating a hazardous condition. See also Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966) (because defendant's operation allowed customers to serve themselves, it was required to anticipate that produce might fall to the ground due to the carelessness of either customers or employees and was obliged to use reasonable measures promptly to detect and remove such hazards in order to avoid the inference that it was at fault); Bozza v. Vornado, Inc., 42 N.J. 355, 359-60 (1964) (plaintiff entitled to an inference of negligence because spillage by customers was a hazard inherent in a self-service cafeteria, obliging owner to negate the inference by presenting evidence of due care).

Summary judgment was sought and granted here on the grounds that plaintiff had failed to show a breach of duty by defendant. Like the plaintiff in Nisivoccia, the plaintiff here was unable to show how the orange substance landed on the floor or how long it had been there before her fall. Her case is further weakened by the absence of corroborating evidence since she cannot identify the store employees she alerted or produce a copy of the report she completed. Still, we are obliged to view the evidence in the light that accords plaintiff the benefit of all legitimate inferences. Brill, supra, 142 N.J. at 540. If her testimony is accepted by a jury, it establishes that she fell on a food-like substance in an aisle near the bakery. It is a fair inference that this substance was on the floor as the result of carelessness by customers in handling products. Because this handling of products was consistent with defendant's mode of operation, defendant was obliged to anticipate such spillage and to use reasonable measures to promptly detect and remove such hazards.

Therefore, like the plaintiff in Nisivoccia,

The plaintiff is entitled to an inference of negligence, shifting the burden of production to the defendant, who may avoid liability if it shows that it did "all that a reasonably prudent man would do in the light of the risk of injury [the] operation entailed." Thus, "[a]bsent an explanation by defendants, a jury could find from the condition of the premises and the nature of the business that defendants did not exercise due care in operating the [establishment], and that said negligent operation was the proximate cause of [the] injuries." The ultimate burden of persuasion remains, of course, with the plaintiff.

[Nisivoccia, supra, 175 N.J. at 564-65 (citations omitted).]

No evidence was presented by defendant to show that it had taken prudent and reasonable steps to avoid the potential hazard. At oral argument of the motion, the court asked what had been disclosed in interrogatories as to the last time and with what frequency defendant patrolled the area. Plaintiff responded that only "canned answers" had been provided. Neither Form C nor Form C(2) Uniform Interrogatories explicitly asks the defendant to provide information about the nature and frequency of inspections. However, such information could have been provided in response to Question 3 of Form C and Question 6 of Form C(2) Uniform Interrogatories. Defense counsel did not dispute that no evidence had been presented regarding defendant's reasonable measures to promptly detect and remove such hazards.

Undoubtedly, the lack of corroborative evidence will bear heavily on a jury's evaluation of plaintiff's credibility. However, because she is entitled to an inference of negligence on the facts presented in her testimony and because no evidence has been presented by defendant to refute that inference, a genuine issue of fact exists as to whether defendant was negligent. We therefore conclude that summary judgment was mistakenly granted in this case.

 
Reversed.

(continued)

(continued)

2

A-4360-08T3

March 26, 2010