NATHANIEL GORDON v. GUL M. DAFTANI, SHAH M. DAFTANI individually and d/b/a AMERICAN FRIED CHICKEN a/k/a AFRICAN FRIED CHICKEN -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1138-08T31138-08T3

NATHANIEL GORDON,

Plaintiff-Appellant,

v.

GUL M. DAFTANI, SHAH M. DAFTANI

individually and d/b/a AMERICAN

FRIED CHICKEN a/k/a AFRICAN

FRIED CHICKEN,

Defendants-Respondents.

 

Argued September 29, 2009 - Decided

 
Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10133-06.

Eric G. Kahn argued the cause for appellant (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Mr. Kahn, on the brief).

Jose D. Roman argued the cause for respondents (Powell & Roman, attorneys; Joseph M. Powell, of counsel; Mr. Roman, on the brief).

PER CURIAM

Plaintiff Nathaniel Gordon appeals the September 26, 2008 order of the Law Division granting summary judgment to defendants Gul M. Daftani and Shah M. Daftani, individually and doing business as American Fried Chicken, also known as African Fried Chicken. For the reasons that follow, we reverse.

Plaintiff delivered nine boxes of frozen chicken parts on a hand truck to the rear entrance of defendants' restaurant on May 26, 2005. As he walked backwards up the entrance ramp to the restaurant kitchen pulling the loaded hand truck, he placed one foot over the threshold into the hallway leading to the kitchen. Plaintiff described the ensuing fall as a "James Brown split," during which the loaded hand truck "came down" on his left knee while his right knee "hit the concrete." The incident was witnessed by three men standing by the freezers in the kitchen area some fifteen feet away. After the fall, plaintiff noticed a substance on the floor, but he did not know whether "it was soap, grease or what." That morning, defendant Shah M. Daftani, one of the owners of the restaurant, had washed down the entrance ramp. When deposed, he said that the ramp required daily sweeping and frequent washing because of debris tracked in as a result of deliveries, everyday use, and the fact that the adjoining property owners were not "clean people."

In order to sustain a cause of action for negligence, a plaintiff must establish that defendant owed him a duty of care, that defendant breached that duty, and that plaintiff suffered an injury proximately caused by defendant's breach. Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div.), certif. denied, 150 N.J. 27 (1997). Negligence will not be presumed; rather, it must be proven. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 338 (App. Div. 2000). There is a presumption against negligence, and the burden of establishing it is on the plaintiff. Buckelew v. Grossbard, 87 N.J. 512, 525 (1981).

A commercial proprietor has a duty to maintain business premises in a reasonably safe condition for the protection of business invitees. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993). The "standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." Ibid. Additionally, a business owner must "not create any condition which renders the premises dangerous." O'Shea v. K Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997).

We review the award of summary judgment applying the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We must decide whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment should be granted only when "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).

With these principles in mind, we turn to plaintiff's contentions of error. Plaintiff begins by asserting that the mode-of-operation rule is applicable to this factual scenario. We do not agree. The mode-of-operation rule is limited to those situations where the "nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents" creates the hazard, thereby filling in the requisite notice requirement. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). Knowledge is presumed because some aspect of the mode of operation puts, or should put, the premises owner on constructive notice of the danger. See Id. at 563-64. In those cases, plaintiff is entitled to an inference of negligence. Ibid. Factually, this is not a mode-of-operation case, as the motion judge correctly concluded.

Where we part company with the judge was her further determination that the testimony establishing that the premises owners cleaned the ramp daily did not create a genuine issue of material fact. We note that the judge mentioned only sweeping, as opposed to the mopping which Shah M. Daftani testified occurred on the morning of plaintiff's fall. He said he mops with soapy water, and plaintiff said he stepped on "soap, grease" or some other slippery substance.

Plaintiff points to Smith v. First National Stores, Inc., 94 N.J. Super. 462 (App. Div. 1967) in support of the proposition that he has established a genuine issue of material fact. In Smith, the plaintiff was a supermarket patron who slipped on an interior stairwell leading to a restroom. Id. at 464. Evidence was introduced at trial indicating that the meat department "was about five feet away from the foot of the stairway." Ibid. "[P]rior to the accident sawdust was commonly observed upon the stairway," which could have come from the meat or produce departments because employees frequently used those stairs to access the restroom. Id. at 464-65. Neither actual nor constructive notice was deemed necessary because the defendant had created, "through its agents and employees[,] . . . a dangerous condition." Id. at 466. Essentially, the court found that the plaintiff did not have to prove that the defendant had notice of the dangerous condition, because of the possibility that the defendant itself created the hazard. Smith, supra, 94 N.J. Super. at 466.

In this case, as plaintiff points out, defendants may have created the hazardous condition, or been on notice that the same dirt and debris they carefully cleaned from the ramp might create a hazard just beyond the threshold. If the ramp were in a dangerous condition, it is reasonable to attribute to defendants the knowledge that the area just beyond the ramp might be dangerous as well, posing a danger to business invitees such as plaintiff.

As we have said, a business owner's responsibility is affirmative. They are liable for injuries that occur on their premises because "they are in the best position to control the risk of harm." Kuzmicz v. Ivy Hill Park Apts., Inc., 147 N.J. 510, 517 (1997). Defendants were aware of the dangerous condition of the ramp, the only means of ingress available to people making deliveries to the kitchen. Just as defendants had actual notice of the condition of the ramp and had taken steps to address it, we can infer that they had actual notice of the condition of the floor inches beyond the threshold as well. It would require similar efforts to be kept in a clean and safe condition. On the very day plaintiff made the delivery, the ramp was washed with soap, water and bleach. Given the favorable inferences that must be made for plaintiff's benefit on a motion for summary judgment, the possibility that soapy water or debris remained on the floor where plaintiff slipped does constitute sufficient evidence of notice of the potential dangers to warrant plaintiff's claim reaching the jury.

We consider the possibility that defendants created the hazardous condition, or had constructive notice of it, to raise a genuine issue of material fact. Plaintiff has presented just enough evidence to withstand a motion for summary judgment, as a trier of fact could reasonably infer that defendants either created a dangerous condition or had constructive notice of a hazardous condition prior to his fall. We therefore reverse and remand for trial.

 
Reversed.

(continued)

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A-1138-08T3

November 13, 2009