SYLVIA HUNT v. MAY DEPARTMENT STORES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2769-05T52769-05T5

SYLVIA HUNT,

Plaintiff-Appellant,

v.

THE MAY DEPARTMENT STORES COMPANY,

d/b/a STRAWBRIDGE'S,

Defendant-Respondent,

and

ULTIMATE SERVICES GROUP,

Defendant.

_________________________________________

 

Submitted: December 6, 2006 - Decided April 2, 2007

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-1030-05.

Miller and Schwartz, attorneys for appellant (Donald Schwartz, on the brief).

Murphy and O'Connor, attorneys for respondent (Michael J. Dunn, on the brief).

PER CURIAM

Plaintiff, Sylvia Hunt, sued defendant, The May Department Stores Company d/b/a Strawbridge's (Strawbridge's), alleging that on March 6, 2003 at 5:05 p.m., she fell inside the Strawbridge's department store at the Cherry Hill Mall. Hunt alleged that she was walking on the tiled floor between the sales areas for men's cologne and men's underwear, when her left foot slipped on the wet floor causing her to fall forward. When she got up, she saw skid marks from her shoes on the floor.

It is undisputed that it had rained earlier on that day. When Hunt entered the store, she wiped her feet on the carpet. After the fall, Hunt saw drippings of water on the floor. She did not see those drippings prior to her fall and could not state how long they had been on the floor prior to her accident. There were approximately ten "quarter-size water drippings" or droplets. The liquid was clear. There was no container on the floor from which the liquid could have spilled. Employees of Strawbridge's were in the area of Hunt's fall. They helped her get up once she was able to do so.

Hunt sued Strawbridge's and Ultimate Services Group (Ultimate), the maintenance entity for the Strawbridge's store. Both defendants answered and denied liability. Ultimate moved for summary judgment. It was unopposed and, therefore, granted. Strawbridge's moved for summary judgment. Hunt opposed the motion.

In support of its motion, Strawbridge's presented the pre-trial deposition testimony of its employee, Margaret Elizabeth Gittings. She was working in the men's fragrance department. She and another employee, Mary Holmes, were standing at the gap between the men's fragrance counters. Gittings' attention was first drawn to Hunt as she was falling. After the fall, Gittings noticed a little bit of water on the floor. Evelyn Foley and Pamela Nichols, both sales associates, were also in the area of the fall. The water on the floor was wiped up by Foley and Kevin Brink. Paper towels were available in the cash register areas. Wet floor signs or cones were available at various locations. Gittings noted that employees always visually inspected their departments.

The judge granted the motion, stating on the order that "reasons set forth on record on January 20, 2006." However, due to a technical problem there is no transcript of the opinion. Therefore, we do not have the benefit of the judge's reasons. Appellant's attorney certified that:

[o]n January 25, 2006, I ordered the transcript of the opinion of the Court in this matter. On February 27, 2006, I was advised by the Court that the recording device malfunctioned at the hearing on January 20, 2006, and no recording occurred. The Court further advised that he had no present recollection of the argument or of his oral opinion. Thus, no transcript exists.

Such an unexplained failure to monitor and/or maintain the recording equipment has unfortunately disadvantaged the litigants, the motion judge and the Appellate Division.

On appeal, Hunt contends:

WHERE STRAWBRIDGE'S EMPLOYEES WITNESSED HER SLIP AND FALL, ACKNOWLEDGED THE EXISTENCE OF WATER UPON THE FLOOR AND HAD WARNING CONES AND PAPER TOWELS AVAILABLE TO THEM, SUMMARY JUDGMENT AS TO THE ISSUE OF NOTICE IS INAPPROPRIATE.

We disagree.

When stating a claim for negligence, the plaintiff must prove all of the necessary elements in order to avoid a dismissal on a motion for summary judgment. Long v. Landy, 35 N.J. 44, 54 (1961). The elements to establish a cause of action such as that alleged by Hunt are clear. "[The landowner of premises] to which the public is invited . . . owes a duty of reasonable care to those who enter the premises upon that invitation, to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982). However, such landowner "generally is not liable for injuries caused by defects of which he had no actual or constructive notice and no reasonable opportunity to discover." Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984).

Here, there is a failure of proof with respect to notice. Even when viewed in the light most favorable to Hunt, as we must; the record discloses no evidence of notice. Neither Hunt nor Gittings had actual knowledge. No facts were presented to the judge from which an inference can be reached that Strawbridge's had actual or constructive notice of a condition that rendered the store "not reasonably safe."

First, we note that the substance on the floor was not identified. It is safe to presume that it was water. Second, its origin is unknown. Third, and most importantly, there is no proof of how long it was there before Hunt fell. The presence of Gittings, Holmes, Foley or Nichols does not establish notice of the allegedly unsafe condition. The burden is on Hunt to establish this alleged unsafe condition.

 
We conclude, based on our careful reading of the motion record, that Hunt has not met her burden. Accordingly, the order under appeal is affirmed.

Rule 4:46-2, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

(continued)

(continued)

5

A-2769-05T5

April 2, 2007