MICHAEL DeLEON v. GLIMCHER REALTY TRUST,
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1160-08T1
MICHAEL DeLEON and DAMARYS
DeLEON,
Plaintiffs-Appellants/
Cross-Respondents,
v.
GLIMCHER REALTY TRUST,1 and
TRIDON CLEANING CORPORATION,2
Defendants,
and
OFF 5TH SAKS FIFTH AVENUE OUTLET,
Defendant-Respondent/
Cross-Appellant,
and
ONESOURCE MANAGEMENT, INC.,
Defendant-Respondent.
_________________________________________________
Submitted October 21, 2009 - Decided August 26, 2010
1
Glimcher Realty Trust was voluntarily dismissed during
discovery.
2
Tridon Cleaning Corporation was dismissed for lack of
prosecution.
Before Judges Fisher and Sapp-Peterson.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-3727-06.
Sanchez, Sanchez & Santoliquido, attorneys
for appellants/cross-respondents (Carolyn
Gilinsky, on the brief).
Sheikh P.C., attorneys for respondent/cross-
appellant Off 5th Saks Fifth Avenue Outlet
(Umar A. Sheikh and Tristan C. Loanzon of
the New York, California and Washington, D.C.
bars, admitted pro hac vice, on the brief).
Traflet & Fabian, attorneys for respondent
Onesource Management, Inc. (Christine M.
Gurry, on the brief).
PER CURIAM
This appeal and cross-appeal arise from orders granting
summary judgment in favor of defendants, Off 5th Saks Fifth
Avenue Outlet (Saks) and OneSource Management, Inc. (OneSource),
stemming from a slip and fall from which plaintiff,3 Michael
DeLeon, a Saks employee, sustained injuries. We affirm both
orders, but as to Saks, for a different reason.
Plaintiff worked for Saks in its Elizabeth store as a loss
prevention associate (also known as a store detective). He
slipped and fell on the floor in the men's restroom, sustaining
3
Although both Michael and Damarys are named as plaintiffs,
Damarys DeLeon's cause of action is based upon a per quod theory
of recovery only. References to plaintiff in this opinion are
only to Michael DeLeon.
A-1160-08T1
2
injuries on December 4, 2004, around 4:00 p.m. One month
earlier, he had sustained another work-related injury, a
sprained left ankle, as a result of chasing a shoplifter. He
returned to work on December 3, and, at that time, was walking
with a cane and still receiving physical therapy for this
injury. Prior to his fall, DeLeon had not observed any water on
the floor, but did observe water at the time he slipped.
Defendant, OneSource, contracted with Saks to provide
cleaning services to Saks' stores nationwide, including the
Elizabeth store. Under its contractual obligation, OneSource
provided cleaning services to the Elizabeth store daily. It
typically cleaned the restrooms twice a day, before the store
opened and around 5:30 p.m. No evidence was disclosed during
discovery that OneSource was aware of any water problem in the
bathroom on the day of plaintiff's slip and fall. Nor was there
any evidence in the record that prior to plaintiff's fall, there
had been a recurring water problem in the restroom.
Additionally, discovery revealed no other general complaints
about the cleanliness or maintenance of the restrooms prior to
plaintiff's slip and fall.
Following the accident, DeLeon filed a workers'
compensation claim seeking the recovery of benefits stemming
from this work-related accident and subsequently received
A-1160-08T1
3
benefits. Saks Incorporated, Saks' parent company, the named
insured under an insurance policy covering Saks employees at the
Elizabeth store, answered the petition. DeLeon commenced
receiving workers' compensation benefits.
In seeking summary judgment, OneSource argued that it
breached no duty of care owed to plaintiff. Saks maintained
that it was entitled to summary judgment based upon the
exclusivity provision contained in the Workers' Compensation Act
(Act), N.J.S.A. 34:15-1 to -128, and also because it breached no
duty of care owed to plaintiff. In granting summary judgment,
the motion judge agreed that it was undisputed that OneSource
breached no duty of care owed to plaintiff. As to Saks, the
judge concluded that there was a factual dispute as to whether
plaintiff was a "special employee" for purposes of overcoming
the workers' compensation exclusivity bar but that summary
judgment was nonetheless appropriate because Saks breached no
duty of care to plaintiff as a matter of law. The present
appeal followed.
On appeal, plaintiffs urge the court erred in granting
summary judgment to both Saks and OneSource. First addressing
Saks, plaintiffs contend the court erred when it found that the
A-1160-08T1
4
"mode of operation"4 rule did not apply and that the restroom was
not "inherently dangerous." As to OneSource, plaintiffs contend
that the language of its contract with Saks was much broader
than construed by the court, which concluded that OneSource "was
to go in and do whatever they're supposed to do pursuant to the
contract[,] which was evidently to clean it on a periodic basis;
periodic, unspecified basis. There was no duty to inspect." In
its cross-appeal, Saks contends the motion judge erred in
finding that there were disputed factual issues relative to
whether the provisions of the Act operated as plaintiff's
exclusive remedy for claims against it.
When reviewing a grant of summary judgment, we employ the
same legal standards used by the motion judge. Spring Creek
Holding Co. v. Shinnihon U.S.A. Co.,
399 N.J. Super. 158, 180
(App. Div.), certif. denied,
196 N.J. 85 (2008); Prudential
Prop. & Cas. Ins. Co. v. Boylan,
307 N.J. Super. 162, 167 (App.
Div.), certif. denied,
154 N.J. 608 (1998). First, we determine
whether the moving party has demonstrated that there were no
4
The "mode of operation rule" applies where an inference of
negligence exists because the proprietor of a business could
reasonably anticipate that hazardous conditions could regularly
arise merely from the nature of the business operations or the
manner of doing business. Under such circumstances, plaintiff
need not prove that the proprietor had notice of the dangerous
condition. Carroll v. New Jersey Transit,
366 N.J. Super. 380,
389 (App. Div. 2004).
A-1160-08T1
5
genuine disputes as to material facts, and then we decide
whether the motion judge's application of the law was correct.
Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc.,
387 N.J.
Super. 224, 230-31 (App. Div.), certif. denied,
189 N.J. 104
(2006). In so doing, we view the evidence in the light most
favorable to the non-moving party and analyze whether the moving
party was entitled to judgment as a matter of law. Brill v.
Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523, 529 (1995).
We accord no deference to the motion judge's conclusions on
issues of law, Manalapan Realty, L.P., v. Twp. Comm. of
Manalapan,
140 N.J. 366, 378 (1995), which we review de novo.
Spring Creek, supra,
399 N.J. Super. at 180; Dep't of Envtl.
Prot. v. Kafil,
395 N.J. Super. 597, 601 (App. Div. 2007).
We first dispense with Saks' cross-appeal. Saks argues
that the motion judge erred when it concluded factual issues
precluded the grant of summary judgment based upon the
exclusivity provision of the Act. We agree.
N.J.S.A. 34:15-8 provides:
If an injury or death is compensable under
this [Act], a person shall not be liable to
anyone at common law or otherwise on account
of such injury or death for any act or
omission occurring while such person was in
the same employ as the person injured or
killed, except for intentional wrong.
In Blessing v. T. Shriver & Co., we stated that:
A-1160-08T1
6
an employee, for the purposes of workmen's
compensation, may have two employers, both
of whom may be liable to him in
compensation, and a recovery against one
bars the employee from maintaining a common
law tort action against either for the same
injury.
426, 429-30, (App. Div.
[94 N.J. Super.
1967).]
We detailed a test to determine whether an employer was a
"special employer" and therefore entitled to immunity under the
Act. The factors in Blessing are as follows: 1) whether there
is an express or implied contract for hire between the special
employee and the employer; 2) whether the work being done is
essentially that of the special employer; and 3) whether the
special employee has a right to control the details of the work.
Id. at 430. Two additional considerations that factor in the
determination include determining: 4) who pays the wages of the
employee; and 5) who has the power to hire and fire the
employee. See Walrond v. County of Somerset,
382 N.J. Super.
227, 236 (2006). No one factor is dispositive, and not all five
factors must be satisfied in order for a special employment
relationship to exist. Marion v. Ind. Crating Co., et al.,
358 F.3d 241, 244 (3d Cir. 2004) (citing Blessing, supra,
94 N.J.
Super. at 433-34).
Applying the Blessing factors to the undisputed facts here,
summary judgment pursuant to the Act's exclusivity provisions
A-1160-08T1
7
should have been granted. Saks and Saks Incorporated are listed
on plaintiff's W-2 statement. Plaintiff performed work for both
Saks and Saks Incorporated as he worked to prevent loss.
Additionally, both the store manager and the district manager
had the power and authority to control plaintiff's work.
Further, Saks paid a portion of plaintiff's wages. Moreover,
Saks points out in its brief that there is a federal employer's
identification number for Saks Incorporated and a state employer
identification number for Saks on plaintiff's W-2 statement.
Finally, Saks had the authority to hire and fire plaintiff.
We are convinced that these undisputed facts should have
led to the grant of summary judgment in favor of Saks based upon
the exclusivity provisions of the Act since Saks satisfied all
of the Blessing elements. Hence, the motion judge erred in
denying Saks' motion on this ground. In view of this
determination, we need not address plaintiff's argument that the
court erred in granting summary judgment to Saks based upon the
motion judge's finding that the "mode of operation rule" did not
apply and Saks' restroom was not inherently dangerous.
Next, the essence of plaintiffs' argument as to OneSource
is that the court construed its cleaning contract too narrowly
and that there was no evidence in the record that the "intent of
the signatories to the contract was for OneSource to clean the
A-1160-08T1
8
restroom once a day or every hour of the day." Accepting that
statement as true for purposes of summary judgment, there is
nothing in the record demonstrating that the manner in which
OneSource performed its contractual obligations was causally
related to plaintiff's slip and fall.
"Ordinarily an injured plaintiff . . . must prove, as an
element of the cause of action, that [a] defendant had actual or
constructive knowledge of the dangerous condition that caused
the accident." Nisivoccia v. Glass Gardens, Inc.,
175 N.J. 559,
563 (2003). The fact of an accident resulting in an injury,
without more, is insufficient to establish negligence on the
part of a defendant. Hansen v. Eagle-Picher Lead Co.,
8 N.J.
133, 139 (1951); Vander Groef v. Great Atlantic and Pacific Tea
Co.,
32 N.J. Super. 365, 370 (App. Div. 1954). The burden of
proving negligence is on the plaintiff. Ibid. Negligence is
established from circumstances which would allow a legitimate
inference that a defendant failed to exercise due care. Ibid.
"It is a substantial right of [a] defendant that [a] plaintiff
be required to bear this burden." Ibid. Moreover, "[a]n
inference can be drawn only from proved facts and cannot be
based upon a foundation of pure conjecture, speculation, surmise
Long v. Landy,
35 N.J. 44, 54 (1961) (citing Rivera
or guess."
A-1160-08T1
9
v. Columbus Cadet Corps of America,
59 N.J. Super. 445 (App.
Div. 1960), certif. denied,
32 N.J. 349 (1960)).
Here, plaintiffs have not presented any evidence, direct or
circumstantial, that a dangerous condition was created by
OneSource or that the wet floor in the restroom had existed for
a sufficient length of time that OneSource had constructive
notice of same. While there is no dispute that OneSource owed a
duty of reasonable care to plaintiff in the performance of its
cleaning duties, there is nothing in the record raising a
genuinely disputed issue of fact that the cleaning services
provided were inadequate or that the water on the floor at the
time of plaintiff's slip and fall was causally related to
OneSource's breach of its contractual obligations.
Plaintiffs' expert opined:
1. The restroom was neither checked nor
cleaned sufficiently to assure that the
floors [were] dry and slip resistant;
2. No mats were deployed at either the
urinal or the floor area around the
lavatories to enhance slip resistance;
3. Toilet water supply pipes are exposed
and not insulated so that they can
sweat and drip water to the floor;
4. The urinal was not equipped with a
splash guard to prevent water from
splashing onto the floor.
A-1160-08T1
10
Nothing in OneSource's contract called for it to provide
floor mats, insulate exposed water pipes or to equip urinals
with splash guards to prevent water from splashing on the floor.
While it is foreseeable that water may drip onto the floor for a
number of reasons, that alone does not establish that the manner
in which OneSource performed its cleaning obligations was likely
to cause the condition which plaintiff claims caused his fall.
There was no evidence in the record of any prior complaints
relative to the condition of the restrooms or any particular
problems with water accumulation. Hence, the motion judge
properly granted summary judgment in favor of OneSource.
Affirmed.
A-1160-08T1
11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
