LYNETTE CALDWELL v. MODERN FACILITIES SERVICES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1335-10T2

LYNETTE CALDWELL,

Plaintiff-Appellant,

v.

MODERN FACILITIES SERVICES,

Defendant-Respondent.

____________________________________

November 20, 2012

Submitted December 12, 2011 - Decided

Before Judges A. A. Rodriguez and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-398-09.

Lynette Caldwell, appellant pro se.

Morgan Melhuish Abrutyn, attorneys for respondent (Leonard Leicht, of counsel; Mr. Leicht and Won Jai Lee, on the brief).

PER CURIAM

In this slip and fall case, pro se plaintiff appeals from the entry of summary judgment to defendant dismissing her complaint.1 We affirm.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider 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). Viewed most favorably to plaintiff, the summary judgment record established the following facts.

Plaintiff slipped and fell on a rubber mat at a PATH train station in Jersey City. Defendant placed the mat down due to inclement weather, which consisted of a mixture of melted snow and rain. At plaintiff's deposition, she testified that

A: When I first got to the incline [leading to the train,] there was a wet floor sign.

Q: Can you describe . . . [the] wet floor sign . . .?

A: It was a yellow cone.

. . . .

Q: And that was at the beginning of the incline?

A: Right.

Q: About how many steps into the incline did you take before you slipped and fell[,] approximately?

A: Oh, it's so long.

. . . .

Q: I traveled about [eighty-five] percent of the incline.

. . . .

A: [The mat] cover[ed] about [ninety] percent of [the incline].

. . . .

Q: Was the mat that you were walking on completely flush to the ground? [That is,] completely flat with the ground?

A: Yes.

. . . .

Q: During your course of walking down the incline[,] were you always walking on the rubber mat?

A: Yes, the entire time.

Q: [D]id you notice any kind of wetness . . . on the mat as you were walking?

A: It was wet.

In granting defendant's summary judgment, the judge stated that there was "[n]o issue of material fact for [a] jury. No evidence that [the] rubber mat was in poor condition, contained holes[,] or was frayed. No evidence [that] it was defective, or damaged in any manner which caused plaintiff to fall." The judge hand wrote in the October 1, 2010 order that there was "[n]o evidence [that the] rubber mat was defective or in poor condition in that the placement of the mat was done in a negligent manner. Therefore[, there is] no issue of material fact for a jury to decide."

We have carefully considered plaintiff's arguments in light of the record and applicable legal principles and conclude that her arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the judge. We add the following brief comments.

To establish a prima facie case of negligence, a plaintiff must establish: "(1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) proximate cause, and (4) actual damages." Meier v. D'Ambose, 419 N.J. Super.439, 444 (App. Div.), certif. denied, 208 N.J.370 (2011). "The plaintiff bears the burden of proving each of these elements." Ibid. Furthermore, "'[n]egligence is conduct which falls below the standard established by law for the protection of others against an unreasonable risk of harm.'" Pfenninger v. Hunterdon Cent. Reg'l High Sch., 167 N.J. 230, 240 (2001) (quoting Restatement (Second) of Torts 282 (1965)). In addition, "[n]egligence is a fact which must be shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 54 (1961). Ultimately, "the mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence." Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954) (internal quotation marks omitted). Here, plaintiff failed to establish a prima facie case of negligence and defendant is entitled to summary judgment as a matter of law.

1 Plaintiff appealed from orders dated August 27, 2010, October 1, 2010, and October 18, 2010. The combined effect of these orders was to enter summary judgment to defendant as a matter of law.