THERESA BARBERIA v. HACKENSACK UNIVERSITY MEDICAL CENTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5396-05T25396-05T2

THERESA BARBERIA,

Plaintiff-Appellant,

v.

HACKENSACK UNIVERSITY

MEDICAL CENTER,

Defendant-Respondent,

and

HILLCREST HEALTH SERVICE SYSTEM, INC.,

Defendant.

_____________________________________________________________

 

Submitted March 27, 2007 - Decided April 27, 2007

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-14072-04.

Gary A. Werner, attorney for appellant.

Reiseman, Rosenberg & Pfund, attorneys for respondent (Lawrence H. Jacobs, of counsel; David J. Bloch, on the brief).

PER CURIAM

Plaintiff Theresa Barberia appeals from an order of the Law Division, Bergen County, dated May 12, 2006, which granted the motion of defendants Hackensack University Medical Center (HUMC) and Hillcrest Health Service System, Inc. (HHSS) for summary judgment. We affirm.

In her complaint, filed on December 8, 2004, plaintiff alleged that she was injured on June 4, 2003, when she slipped and fell on a small piece of cellophane in a corridor while she was visiting a friend at the premises owned, operated, and maintained by the defendants HUMC and HHSS. In their joint Answer to the Complaint, defendants admitted that HUMC owns the premises, but they denied plaintiff's allegations of negligence. Near the end of the period of discovery and after an exchange of experts' reports and completion of depositions of plaintiff and plaintiff's expert, defendants moved for summary judgment, returnable on May 12, 2006. Defendants contended that plaintiff had no evidence of defendants' actual or constructive notice of the alleged dangerous condition. Plaintiff argued that defendants' housekeeping practices were insufficient and, since she had fallen on the clear cellophane on the shiny floor, there was a question of fact as to whether or not defendants' employees actually patrol the hallways on a regular and consistent basis, as defendants' policies mandate, to discover and eliminate dangerous conditions.

After affording counsel for the parties an opportunity to present oral arguments, Judge Menelaos W. Toskos indicated he would issue a written opinion, which he did that same date. In that written opinion, Judge Toskos observed that there was nothing to indicate where the piece of cellophane came from and no evidence of how long it had been on the floor. He rejected plaintiff's argument that defendants' open visitation policy or the existence of gift shops, vending machines and cafeterias on the premises created a substantial risk of injury. See, e.g., Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966). The judge concluded that there was nothing about defendants' method of doing business that increased the risk of injury to visitors. Referring to Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003), the judge also concluded that plaintiff had produced no evidence that defendants either created the dangerous condition or had actual or constructive notice of the cellophane on the floor. He noted that the mere fact that cellophane was on the floor did not raise a question of fact as to whether the staff had actually checked for debris every hour or whether the policy that was in place was adequate because it was unknown how long the cellophane was on the floor before plaintiff slipped. It could have been there a matter of minutes or, certainly, less than an hour. Consequently, he determined that defendants were entitled to summary judgment.

Summary judgment is to 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); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all the legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). On appeal, "[w]e employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

 
For substantially the reasons articulated in Judge Toskos' concise and well-reasoned written opinion of May 12, 2006, we affirm.

Affirmed.

The order from which the appeal is taken grants summary judgment in favor of both named defendants, however, in the Notice of Appeal and briefs on appeal only HUMC is identified as the respondent. Since all of the arguments are addressed solely to that respondent, we deem any claims against HHSS to have been abandoned. R. 2:6-2(a)(5); In Re Freshwater Wetlands Permit, 379 N.J. Super. 331, 334 n.1 (App. Div. 2005); Triffin v. Mellon PSFS, 372 N.J. Super. 221, 226 (App. Div. 2004); Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001).

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A-5396-05T2

April 27, 2007