MARIA IRIZARRY v. PATHMARK STORES, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4307-05T24307-05T2

MARIA IRIZARRY,

Plaintiff-Appellant,

v.

PATHMARK STORES, INC., and

INTERNATIONAL PORTRAIT

STUDIOS, INC.,

Defendants-Respondents.

_________________________________

 

Argued January 10, 2007 - Decided January 31, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, Docket No. MID-L-5664-04.

John D. Kovac argued the cause for appellant (Mr. Kovac, of counsel; Jeffrey Zajac, on the brief).

Kevin E. Hoffman argued the cause for respondent Pathmark Stores, Inc. (Kent & McBride, attorneys; Thomas F. Verrastro, of counsel and on the brief).

Respondent International Portrait Studios did not file a brief.

PER CURIAM

Plaintiff Maria Irizarry appeals from the summary judgment dismissal of her slip and fall negligence complaint against defendants Pathmark Stores, Inc. (Pathmark) and International Portrait Studios, Inc. (IPS). We reverse for the following reasons.

Considering, as we must, the proofs in a light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), they are as follows. IPS had a business arrangement with defendant to set up a booth at defendant's supermarket on Ferry Street in Newark and to advertise its family photograph portrait services to defendant's customers for a limited time in exchange for monetary compensation. Sometime in June 2004, while shopping at the supermarket, plaintiff noticed the IPS booth and scheduled an appointment for pictures to be taken of one of her daughters. After the photographs had been taken, plaintiff received notices in the mail that they were available to be picked up at defendant's supermarket, on June 20, 2004, between 11:00 a.m. and 3:00 p.m.

On that day, plaintiff arrived at the supermarket after the scheduled pick-up time, but had been assured earlier by customer service that an IPS representative was still there. In fact, throughout the day, IPS had been distributing photographs from the employee break room, which was located in the warehouse adjacent to, but separate from, the retail area of the supermarket. Upon arrival, plaintiff sought out an IPS salesperson. Walking down a produce aisle, she encountered a supermarket maintenance employee, who directed her to the break room, through the double doors at the end of the produce aisle and, following yellow arrows on the floor, into the warehouse where the IPS representative had been set up.

When plaintiff entered the break room, she noticed only empty tables and chairs. While searching for the IPS representative, plaintiff walked up a four-foot wide concrete stairway located immediately to the left of the break room. Upon reaching the seventh or eight step - about halfway up - plaintiff realized the stairway led only to a compressor room and so she turned around. Upon descending the stairs, plaintiff fell on the fourth step from the bottom, when her left leg went out into the air. The stairway had handrails on both sides, but the area was dimly lit. She noticed no standing water, liquid, foreign substance or other debris on the stairway. Plaintiff was wearing "flat-soled" shoes at the time. Although she was unable to ascertain the exact cause of her fall, plaintiff explained:

Like I slid like that, up. And my whole leg went up and I fell, boom, on my left side of my body on the stairs, that left me on these stairs right here which is the first three.

Claiming injury to her back, plaintiff filed a lawsuit against defendant and IPS, alleging negligence in maintaining a hazardous condition on the stairway. During discovery, plaintiff's expert engineer, Michael Natoli, personally inspected the stairway, which has nineteen steps, each 3 feet, 8.5 inches wide and 12.5 inches deep with 7-inch risers. Natoli observed that the "nosing" - the one inch edge of the whole stair tread - did not contain the "coarse surface texture" that comprised the rest of the stair tread. Though much of the tread on the stairs contained a nonslip surface, the nosing "contained a brown-colored paint comprised of metal fabrication . . . devoid of the abrasive materials" that comprised the rest of the tread. This created an "extremely dangerous condition," in violation of Occupational Safety and Health Administration (OSHA) Safety and Health Standards and Building Officials and Code Administrators (BOCA) National Building Code safety regulations requiring stair treads to be reasonably slip-resistant. According to Natoli, this defect could easily have been remedied by applying "an appliqu surfacing" to the "smooth metal nosing."

In opining that plaintiff's foot contacted this nosing, and caused her to slip and fall, the expert described the process of human locomotion on stairs:

[This] is accomplished by a series of reciprocal leg movements, which enable persons to traverse the stairway areas. Therefore as the lead foot contacts the stair tread, a frictional force (traction) is generated between the shoe sole material and the contact surface areas. The extent and amount of friction generated between the two contact surfaces must be of such a magnitude as to afford proper footing. Otherwise slippage occurs.

Natoli further observed that "the fall pattern described by the plaintiff is indicative of a true slip occurrence." In so concluding, Natoli ruled out the presence of any slippery or foreign substance on the stairs, or any defect in plaintiff's shoes, which he found, upon examination, provided "a stable walking platform."

At the close of discovery, defendant moved for summary judgment on the basis that plaintiff could not precisely indicate the cause of her fall, and that she "failed to state that she slipped on the edge of the step." In dismissing plaintiff's complaint, the motion judge agreed, finding that the expert's opinion was a net opinion because "nothing that he bases his . . . opinion on . . . has any basis . . . in the

. . . account of how the fall occurred . . . by . . . Ms. Irizarry." We disagree. We find genuine issues of material fact exist as to whether the nosing on the stairs was both hazardous and therefore a breach of the duty owed plaintiff, and a proximate cause of plaintiff's slip and fall, sufficient to warrant the matter to proceed to trial. The grant of summary judgment was therefore inappropriate.

We review summary judgment determinations de novo, without deference to the trial court's ruling. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003). Summary judgment should be granted only when (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can only come to a conclusion adverse to the nonmoving party, when viewing the evidence in the light most favorable to the nonmoving party. Brill, supra, 142 N.J. at 540.

Broadly speaking, to recover on a negligence claim, a plaintiff must prove (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, and (3) that the breach of the duty proximately caused the plaintiff's injury. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 288 (1984). In a premises liability case, as here, the type of duty owed by defendant to plaintiff generally depends upon plaintiff's classification. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993) (noting that the three classifications are business invitee, licensee and trespasser). Business invitees are defined as individuals that "come by invitation, express or implied." Snyder v. I. Jay Realty Co., 30 N.J. 303, 312 (1959). The duty owed business invitees, such as plaintiff here, is a duty of reasonable care to guard against any dangerous conditions on [its] property that [defendant] either kn[ew] about or should have discovered. That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." Hopkins, supra, 132 N.J. at 434. Of course, this duty only extends to those actions which are "within the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003).

Here, plaintiff's expert provided sufficient proof of both breach and causation to withstand summary judgment. And, contrary to the motion judge's finding, the expert's opinion, in turn, was well supported by factual evidence. Obviously, an expert's bare conclusions, unsupported by factual evidence, are inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). However, Natoli's opinion in this case was based on physical inspection, which revealed a slippery "nosing" section of the stair treads lacking an abrasive coating; OSHA and BOCA National Building Code safety regulations requiring stair treads to be reasonably slip-resistant; plaintiff's own account of how she fell; the mechanics of descending stairs and the process of human locomotion; the elimination of other items, including foreign substances and defective shoes, that may have contributed to the fall; and the plausible inference that when a person descends a stairway, his or her foot would normally rest in part upon the outer "nosing" of the step.

Considered together and cumulatively, these facts reasonably explain and support the "why[s] and wherefore[s] of [Natoli's] opinion," State v. Townsend, 186 N.J. 473, 494 (2006), and amount to much more than a bare conclusion. Indeed, although violations of OSHA or BOCA regulations or standards may not constitute negligence per se, such evidence is sufficient to raise a genuine issue of material fact regarding a premises owner's duty and breach of duty. McComish v. DeSoi, 42 N.J. 274, 282-86 (1964); Smith v. Kris-Bal Realty, Inc., 242 N.J. Super. 346, 352 (App. Div. 1990); Sanna v. Nat'l Sponge Co., 209 N.J. Super. 60, 69 (App. Div. 1986); N.J.R.E. 703.

As to causal connection, even if plaintiff could not precisely pinpoint the specific cause of the slip, there were sufficient facts from which it may be reasonably inferred that the hazardous condition identified by the expert was a proximate cause of plaintiff's injury. On this score:

It is well settled that the existence of a possibility of a defendant's responsibility for a plaintiff's injuries is insufficient to impose liability. "In the absence of direct evidence, it is incumbent upon the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference that the injury was caused by the wrongful act of the defendant and would exclude the idea that it was due to a cause with which the defendant was unconnected. While proof of certainty is not required, the evidence must be such as to justify an inference of probability as distinguished from the mere possibility of negligence on the part of the defendant."

[Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 141 (1951) (quoting Callahan v. Nat'l Lead Co., 4 N.J. 150, 154 (1950)).]

 
Here, when all the evidence is considered in the light most favorable to plaintiff, including most notably the dynamics of the human locomotive process coupled with the fact that no other hazards were shown to have been present, it is reasonable to infer that the defect in the stairs probably caused the accident. Because genuine issues of material fact exist as to both breach of duty and causation, we conclude that summary judgment was erroneous.

Reversed and remanded.

When used in the singular, defendant refers only to Pathmark Stores, Inc.

(continued)

(continued)

9

A-4307-05T2

January 31, 2007