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DOCKET NO. A-0925-11T2







May 9, 2012


Argued March 27, 2012 - Decided


Before Judges Yannotti and Guadagno.


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-518-10.


Dennis G. Polizzi argued the cause for appellant (Weiner & Mazzei, attorneys; Mr. Polizzi, of counsel and on the brief).


Charles B. Carey argued the cause for respondent (Carey & Grossi, attorneys; Mr. Carey, on the brief).


In this slip and fall case, plaintiff Tina Lee appeals from the August 19, 2011 Law Division order, which granted summary judgment to defendant ShopRite and dismissed her complaint. She also appeals the October 6, 2011 order denying her motion for reconsideration. We affirm.


On the morning of June 29, 2008, plaintiff went to a ShopRite store in Passaic to purchase ice cream. After reaching into the freezer to get two containers of ice cream, plaintiff slipped and fell while walking away. Plaintiff did not notice anything on the floor before she fell, but after a friend helped her up, she noticed her pants were wet on her left side and observed a puddle of water approximately 8 by 10 inches. After the fall, plaintiff was taken to a local hospital and treated. Plaintiff filed a negligence complaint against ShopRite, claiming she suffered "severe and permanent injuries."

During her deposition testimony, plaintiff admitted she did not know where the water came from:

Q: Do you know where the water came from?


A: You know how when something is leaking, like, your refrigerator may be leaking, it was coming, like, out of there. That's the only place.


Q: That's what you're assuming?


A: Yes, that it was a leak.


Q: Do you know from any source, from speaking to anybody, or from any other source, where the water actually came from?


A: No.


Q: Did anyone tell you that the water was from a leak?


A: No.


ShopRite filed a motion for summary judgment, arguing that plaintiff could not prove a duty of care because it did not have actual or constructive notice of the dangerous condition. In opposition, plaintiff argued that she was entitled to an inference of negligence under the mode-of-operation rule because customers in the frozen food section of the grocery store "handl[e] the product that's frozen and the ice on the product falls on the ground and melts[.]" Although plaintiff argued that the freezer was leaking, she conceded she had no proof of that and had not deposed anyone from ShopRite. She also did not "have any discussion about what procedures [ShopRite has] in place for taking care of these problems as they exist in the store[.]"

Judge Garry S. Rothstadt granted summary judgment, explaining:

[H]aving conceded the issues involving any type of notice, the argument that the eight inch puddle that the Plaintiff alleges she slipped on was caused by condensation from an ice cream container, I don't think any reasonable fact finder could ever come to that conclusion in terms of a method of operation argument . . . .


On appeal, plaintiff raises the same arguments she raised below.


Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v.N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Twp. ofCinnaminson v. Bertino, 405 N.J. Super. 521, 531 (App. Div.), certif. denied, 199 N.J. 516 (2009).

Summary judgment must 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). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachiv. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Zabilowicz v.Kelsey, 200 N.J. 507, 512-13 (2009). Applying these standards, we conclude that Judge Rothstadt properly granted summary judgment.

The duty of care a business owner owes to an invitee is well-established:

Business owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation. The duty of due care requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.


[Nisivocciav.GlassGardens,Inc.,175 N.J.559, 563(2003).]


The mere fact that a person may have fallen, in and of itself, is insufficient to establish liability against a defendant. Simpsonv. Duffy, 19 N.J. Super. 339, 343 (App. Div.), certif. denied, 10 N.J. 315 (1952). An injured plaintiff must ordinarily prove "that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563. Here, plaintiff conceded that she could not prove that ShopRite had knowledge of the condition prior to her fall.

When the very nature of a business's operation creates the hazard, however, the "mode-of-operation rule" creates an inference of negligence and "the burden shifts to the defendant to 'negate the inference by submitting evidence of due care.'" Nisivoccia,supra,175 N.J.at 564(quoting Bozzav.Vornado,Inc.,42 N.J.355, 359(1964)). This inference relieves the plaintiff of proving that the defendant had actual or constructive notice of the dangerous condition and instead requires the defendant to show it did "all that a reasonably prudent man would do in light of the risk of injury [the mode of operation] entailed." Wollerman v. GrandUnion Stores, Inc., 47 N.J. 426, 429 (1966).

Plaintiff relies on Wollerman and Nisivoccia in arguing that mode-of-operation liability should be imposed on ShopRite. She suggests:

[I]f ice had fallen off the container of ice cream while a patron was picking up the ice cream or while it was stacked on the shelves by an employee of the defendant or if the freezer case was leaking, these probable causes [sic] would all be under control of the defendant.

This argument is unpersuasive as Wollerman and Nisivoccia involve items that were sold on a self-service basis and could foreseeably fall on the floor because they were in open bags, bins or containers. Nisivoccia, supra, 175 N.J. at 561 (loose grapes displayed in open-top, vented plastic bags), Wollerman, supra, 47 N.J. at 429 (string beans sold from open bins).

As defense counsel argued during the August 19, 2011 motion hearing:

If you take Plaintiff's argument as mode-of-operation, you'd have mode-of-operation in every area of the store and then there would no longer be a special category for mode-of-operation as opposed to notice. Everything would be mode-of-operation and there would no longer be that burden.


Here, plaintiff has made no showing that dispensing ice cream from the self-service freezer was likely to create a dangerous condition that was foreseeable by ShopRite.

Plaintiff's accident occurred on a small slick of clear liquid. She provided no proof as to the source of this liquid and did not establish that the presence of the liquid on the floor was a reasonably anticipatable hazardous condition that ShopRite should have known about or taken steps to guard against. Moreover, there was no evidence as to how long the liquid was on the floor before plaintiff's accident.