BARBARA CORDASCO v. WALGREEN CO.


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1636-10T3



BARBARA CORDASCO and ROCCO CORDASCO,


Plaintiffs-Appellants,


v.


WALGREEN CO., WALGREEN EASTERN,


Defendant-Respondent,


and


STERLING-ROSELAND, LLC,


Defendant.

________________________________

October 31, 2011


Submitted October 18, 2011 - Decided


Before Judges Payne and Simonelli.


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7187-09.


Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys for appellants (Scott M. Sinins, on the brief).


Coughlin Duffy LLP, attorneys for respondent (George A. Kelman, of counsel and on the brief).


PER CURIAM

In this slip and fall case, appellants Barbara Cordasco (plaintiff) and Rocco Cordasco1 appeal from the October 29, 2010 Law Division order, which granted summary judgment to defendant Walgreen Eastern Co., Inc. (Walgreen)2 and dismissed their complaint with prejudice. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 540 (1995). On the morning of March 12, 2008, plaintiff went to a Walgreen store in Roseland to purchase panty hose and Kleenex. She walked down an aisle toward the checkout lanes to pay for her merchandise. As she approached two self-service bins containing merchandise, which were located at the end of the aisle, she slipped and fell in front of the bins, injuring her right shoulder, neck, and left knee.

Plaintiff did not notice anything on the floor before she fell. As for what may have caused her fall, plaintiff testified at her deposition as follows:

When I finally was able to get up I did look down. There was some kind of a waxy like substance. I don't know what it was, if it was a type of crayon material. It seemed to be that kind of substance and there was, I guess, like a [skid mark] that I guess I had made from stepping on whatever that was.


However, plaintiff did not know exactly what the substance was, where it came from, how long it had been there, or whether any Walgreen employee knew about it prior to her fall.

Walgreen filed a summary judgment motion, arguing that plaintiff could not prove it breached a duty of care to her because there was no evidence Walgreen had actual or constructive notice of a dangerous condition. In opposition, plaintiff argued that she was entitled to an inference of negligence under the mode-of-operation rule because Walgreen is a self-service operation. She also argued that Walgreen is liable because it lacked in-store maintenance and inspection procedures.

Judge Cronin granted summary judgment, finding the mode-of-operation rule did not apply because plaintiff could not establish a nexus between the merchandise in the self-service bins where she fell and the substance on the floor. He rejected plaintiff's argument relating to the lack of procedures, and concluded there was no evidence Walgreen had actual or constructive notice of a dangerous condition. This appeal followed. On appeal, plaintiff raises the same arguments she raised below.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J.481, 491 (2005); Twp. of Cinnaminson v. Bertino, 405 N.J. Super. 521, 531 (App. Div.), certif. denied, 199 N.J.516 (2009). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp., supra, 189 N.J. at 445-46 (quoting Brill, supra, 142 N.J. at 536).

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). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009). Applying these standards, we conclude that Judge Cronin properly granted summary judgment.

The duty of care a business owner owes to an invitee is well-established:

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. The duty of due 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.


[Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003) (citations omitted).]


The mere fact that a person may have fallen, in and of itself, is insufficient to establish liability against a defendant. Simpson v. Duffy, 19 N.J. Super. 339, 343 (App. Div.) certif. denied, 10 N.J. 315 (1952). An injured plaintiff must ordinarily prove "that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563. However, a plaintiff need not prove actual or constructive notice where the circumstances were such as to create the reasonable probability that "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." Ibid. In that instance, the plaintiff is entitled to an "inference of negligence, imposing on the defendant the obligation to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard." Id. at 563-64.

Plaintiff relies on Nisivoccia, supra, Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966), Bozza v. Vornado, Inc., 42 N.J. 355 (1964), and Smith v. First Nat'l Stores, Inc., 94 N.J. Super. 462 (App. Div. 1967) to impose mode-of-operation liability on Walgreen. These cases, however, do not apply. Nisivoccia, Wollerman and Bozza involve items, such as food or drink, that were sold on a self-service basis and could foreseeably fall on the floor because they were in open bags, bins or containers. Nisivoccia, supra, 175 N.J. at 561 (loose grapes displayed in open-top, vented plastic bags), Wollerman, supra, 47 N.J. at 429 (string beans sold from open bins), Bozza, supra, 42 N.J. at 358 (beverages served in paper cups without lids or tops). In each case, there was a nexus between the item in the open self-service bag, bin or container and the item on the floor. Nisivoccia, supra, 175 N.J. at 561, Wollerman, supra, 47 N.J. at 429, Bozza, supra, 42 N.J. at 358. In Smith, supra, the plaintiff presented sufficient circumstantial evidence that employees working in the meat department probably tracked greasy or slippery sawdust to the area where he fell. 94 N.J. Super. at 464-66. Again, a nexus to the substance causing the fall was established. Ibid.

Here, there is no evidence whatsoever that the self-service bins contained open bags or containers, that there was any waxy-like substance or crayon-type material in the bins, or that the substance on the floor came from the bins or the merchandise in the bins. Accordingly, the mode-of-operation rule does not apply and plaintiff must establish actual or constructive notice, which she cannot do. She has no idea where the substance on the floor came from, how long it had been there, or whether any Walgreen employee knew about it prior to her fall.

Plaintiff's remaining argument, that Walgreen is liable because it lacked in-store maintenance and inspection procedures, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff Rocco Cordasco asserted a per quod claim.


2 Walgreen Eastern Co. Inc. was improperly pled in the complaint as Walgreen Co., Walgreen Eastern.