MARY ANN FLEMING v. MACY'S EAST, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5572-06T25572-06T2

MARY ANN FLEMING,

Plaintiff-Appellant,

v.

MACY'S EAST, INC., R.H. MACY and

FEDERATED DEPARTMENT STORES, INC.

d/b/a MACY'S and ULTIMATE SERVICES, INC.,

Defendants-Respondents.

___________________________________________________________

 

Argued April 2, 2008 - Decided

Before Judges R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1800-04.

Scott A. Krasny argued the cause for appellant (Furlong and Krasny, attorneys; Mr. Krasny, on the brief).

Harry Steinberg argued the cause for respondents Macy's East, Inc. and Federated Department Stores, Inc. (Lester Schwab Katz & Dwyer, LLP, attorneys; Mr. Steinberg, on the brief).

John W. Harding argued the cause for respondent Ultimate Services, Inc. (Martin Kane Kuper, attorneys; Mr. Harding, on the brief).

PER CURIAM

Plaintiff Mary Ann Fleming appeals from two June 8, 2007 orders granting summary judgment in favor of: (1) defendant Ultimate Services, Inc. (Ultimate); and (2) defendants Macy's East, Inc. (Macy's) and its former parent company, Federated Department Stores, Inc. (Federated). After reviewing the record in light of the contentions advanced on appeal, we affirm.

On July 9, 2004, Fleming filed a Complaint and Jury Demand against Macy's and its cleaning contractor, Ultimate, alleging that on July 14, 2002, in the Macy's department store in the Quakerbridge Mall, defendants' negligence caused her to slip and fall, resulting in serious injuries to Fleming. Fleming filed an Amended Complaint on September 10, 2004. Both defendants filed timely answers denying liability and asserting cross claims against each other in the event of any adverse determination of liability. Ultimate and Macy's moved for summary judgment on April 24, 2007 and May 14, 2007, respectively. Fleming opposed both motions. On June 8, 2007, following oral argument, the court granted the motions of both movants and entered orders memorializing its decisions. On July 2, 2007, Fleming filed a Notice of Appeal.

The material facts relevant to the disposition of the matter are as follows. On July 14, 2002, Fleming and her mother-in-law were shopping in a Macy's department store located at the Quakerbridge Mall in Lawrence Township. On that date, it was hot, dry and had not rained. After completing their shopping, the two women proceeded toward the exit. As they passed the fine jewelry counter, Fleming's feet went out from under her without warning. Fleming stated that "[i]t was as if I slipped on ice." Prior to the accident, Fleming did not see what caused her to slip. After the accident, she noticed "a big puddle of what [she] thought was water, it was a clear liquid, a pretty large puddle like maybe ten inches in diameter." Fleming's mother-in-law told an employee at the store about the accident. The employee replied that she would take care of the puddle. Fleming and her mother-in-law then left the store.

Approximately one hour later, after experiencing pain, Fleming returned to the store to report the accident. The employee at the jewelry counter stated that she cleaned the spill herself. She directed Fleming to the security department, where Fleming filled out a Customer Accident Report. Fleming maintains that she showed a security guard where the accident occurred and he stated that "[Fleming] fell in a good spot because there are at least five or six cameras . . . it's definitely been recorded."

Macy's security director, Timothy Mottershead, who was familiar with Macy's spill procedures, stated at his deposition that he did not believe that the security cameras were at an angle that would have captured Fleming's fall or the liquid on the floor. Mottershead further stated that if someone had fallen in Macy's, the only items that Macy's would have on file are the accident report and photographs. Mottershead described Macy's policy for maintaining video surveillance tapes as follows: "[W]here the jewelry cameras is [sic] they record 24 hours a day. We change the tapes daily and we keep the tapes two weeks, at which time we go back and tape over those tapes."

Macy's had a housekeeping contract with Ultimate at the time of Fleming's accident. Ultimate assigned four employees to clean the store prior to opening each day. Once the store opened, a porter remained at the premises to maintain the restrooms and respond to calls for anything such as spills. Larry Solha, Ultimate's Regional Manager, described at his deposition the policy for cleaning spills:

Well, depends. The store, I'm not familiar with this store how the system works, but they carry a pager or they get a call by the loudspeaker in the store.

. . . .

Well, they grab a bucket with the mop and with a wet floor sign, and they go to the spot.

Solha stated that porters do not fill out any paperwork or make a recording or report after cleaning up a spill. He also stated that Ultimate had no knowledge of this particular incident.

At the summary judgment motion, after hearing oral argument from all of the parties, the court granted the motions of Ultimate and Macy's. In its oral decision with regard to Ultimate, the court stated:

In a case such as this, it is the plaintiff who must demonstrate the notice and the defendant who must show a lack of notice. The plaintiff has the burden of proof and a fact-finder here would not be able to find that the plaintiff, by a preponderance of the evidence, has demonstrated any notice on the part of Ultimate. The condition may have well occurred long enough to provide notice, but as admitted by plaintiff, there are insufficient proofs to come to that conclusion.

Discussing the merits of the case as they pertained to Macy's, the court opined:

Here, the Court is presented with a plaintiff who [] alleges that she fell in a puddle of liquid. No other facts as to the length of the liquid's presence are presented. There may or may not have been a video recording of the fall and the events leading up to it. The tape may have been created, may also have shown that the puddle existed for a sufficient time to be remedied by the defendant.

Unfortunately, the Court cannot reasonably make these assumptions based upon the evidence the Court has before it. And with the failure of any evidence with regard to notice on the part of Macy's, the Court will also grant summary judgment on behalf of Macy's.

On appeal, Fleming presents the following argument:

THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANTS FEDERATED AND ULTIAMTE.

This court applies a de novo standard of review in regard to summary judgment motions. Trinity Church v. Atkin Olshin Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608, 713 (1998). In making a determination, this court must weigh "'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. Inc. v. Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)).

The judgment or order sought shall be rendered forthwith 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).]

That rule further provides that "[a]n 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 legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.

"Whether a duty exists is ultimately a question of fairness." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (citations omitted). "Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all the circumstances in light of considerations of public policy." Ibid. In the present case, Macy's owed a duty of reasonable care to plaintiff.

"The proprietor of premises to which the public is invited for business purposes of the proprietor 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." This duty to maintain safe premises and protect invitees includes an affirmative obligation upon the proprietor to inspect the premises "to discover their actual condition and any latent defects," as well as "possible dangerous conditions of which he does not know."

[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290-91 (1984) (internal citations omitted).]

The Court further noted that:

A proprietor generally is not liable for injuries caused by defects of which he had no actual or implied knowledge or notice, and no reasonable opportunity to discover. Whether a reasonable opportunity to discover a defect existed will depend on both the character and the duration of the defect. Thus, proprietors have been absolved of liability where a defective condition was found not to be discoverable by reasonable inspection.

[Id. at 291 (internal citations omitted).]

In Tomsky v. Kaczka, 17 N.J. Super. 211, 214 (App. Div. 1952), this court explained that:

the condition which results in injury must either (a) have been, in fact, brought to the previous notice of the store operator (or owner of the premises), or, failing proof of actual notice, (b) have existed for so long a time as to be, in the exercise of reasonable care, discoverable and remediable before the occurrence of the injury.

In Long v. Landy, 35 N.J. 44, 54 (1961), the Court articulated the applicable standard as follows:

The mere showing of an incident causing the injury sued upon is not alone sufficient to authorize the finding of an incident of negligence. Negligence is a fact which must be shown and which will not be presumed. The burden of proving the charge of negligence is upon the plaintiff and must be sustained by proof of circumstances from which defendant's want of due care is a legitimate inference . . . . An inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess.

[(internal citations omitted).]

In the present case, Fleming's proofs do not establish that either Macy's or Ultimate had actual knowledge of the spill. Similarly, her proofs do not establish that either Macy's or Ultimate should have been aware of the spill before she fell. There are no facts indicating that Macy's or Ultimate were responsible for creating the condition or that they were negligent in failing to become appraised of the situation. The burden was on Fleming to demonstrate that Macy's and Ultimate breached their duties to maintain the premises in a reasonably safe condition. See Brown, supra, 95 N.J. at 290-91. As the trial court found, Fleming did not satisfy that burden.

Furthermore, Fleming's argument that Macy's and Ultimate are responsible for the spoliation of evidence is without merit. In civil trials, a party's destruction or concealment of evidence may lead to an adverse trial inference against the party that caused the loss of evidence. Jerista v. Murray, 185 N.J. 175, 201-02 (2005). "If plaintiffs can make a threshold showing that defendant's recklessness caused the loss or destruction of relevant evidence in the underlying personal injury lawsuit, the jury should be instructed that it may infer that the missing evidence would have been helpful to plaintiffs' case and inured to defendant's detriment." Id. at 203. Fleming cannot make the requisite showing for the court to apply a negative inference against Macy's or Ultimate.

 
First, it is unclear that the evidence claimed to be the subject of spoliation, the surveillance tapes, would have helped Fleming. Although Fleming asserts that a security officer told her that the surveillance cameras would have captured her fall, this was contradicted by Mottershead's testimony that the cameras would have been on the counters and it was unlikely the tapes would have shown the puddle that caused Fleming's fall. Additionally, one cannot reasonably conclude that Macy's was reckless in destroying the tapes. Mottershead testified that it was Macy's policy to tape over existing surveillance footage every two weeks. Macy's did not have adequate notice that it should have preserved the tapes, rather than taping over them, considering that Fleming did not make such a request and did not file her claim for nearly two years after the incident. Accordingly, the trial court properly granted defendants' motions for summary judgment.

Affirmed.

"Macy's" refers to both Macy's and Federated throughout the remainder of this opinion.

(continued)

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A-5572-06T2

July 30, 2008