MARINA ANDARA v. WAL-MART STORES EAST L.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0721-12T2

MARINA ANDARA,

Plaintiff-Appellant,

v.

WAL-MART STORES EAST, L.P., and

MARIE CAPACILLO,

Defendants-Respondents.

_____________________________________________________

March 19, 2013

Argued March 12, 2013 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5059-11.

Robert A. Rosenbloom argued the cause for appellant (Thomas E. Hood, PC, attorneys; Thomas E. Hood, of counsel and on the brief).

Jacqueline A. Farrell argued the cause for respondents (Richard D. Millet & Associates LLC, attorneys; Ms. Farrell, on the brief).

PER CURIAM

Plaintiff commenced this action against defendant Wal-Mart Stores East, L.P., and its manager, alleging she slipped and fell on water in Wal-Mart's Watchung store on July 9, 2010. Although he viewed this as a "close case," the trial judge granted summary judgment dismissing the complaint. Because the

evidence, when viewed in the light most favorable to plaintiff, would support a finding that Wal-Mart had constructive knowledge of the slippery condition, we reverse.

Business owners are required to exercise "due care under all the circumstances," Butler v. Acme Markets, Inc., 89 N.J. 270, 275-76 (1982); see also Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 507 (1997); Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964), which includes the duty to keep the premises reasonably safe, to refrain from creating a condition that renders the premises dangerous, and to "discover and eliminate any possible dangerous conditions," O'Shea v. K Mart Corp., 304 N.J. Super. 489, 492-93 (App. Div. 1997); see also Bauer v. Nesbitt, 198 N.J. 601, 615 (2009); Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003); Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290 (1984). When a patron is injured by a dangerous condition, the business operator is liable "if he actually knew of the dangerous condition or if the condition had existed for such a length of time that [the business operator] should have known of its presence," Bozza, supra, 42 N.J. at 359; see also Clohesy, supra, 149 N.J. at 508, although it is not always necessary to prove either actual or constructive knowledge if "a substantial risk of injury is inherent in a business operator's method of doing business," Nisivoccia, supra, 175 N.J. at 564.

The circumstances here are uncomplicated. We view the evidential materials in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). After shopping in the Watchung Wal-Mart on a sunny summer day, plaintiff walked to the self-service checkout area to pay for a soda and slipped and fell. Another customer alerted a nearby cashier, who came to the area and put down paper towels to absorb the water on the floor. Wal-Mart's surveillance video verified that plaintiff fell as she recounted and also recorded the subsequent clean-up by the cashier.

In moving for summary judgment and in an attempt to dispel plaintiff's constructive notice argument, Wal-Mart submitted an affidavit of an employee, who asserted that "[a]pproximately 5 minutes prior to" plaintiff's slip and fall, she "had walked through the area where plaintiff slipped, and there was no water on the floor." The surveillance video, however, while confirming the cashier was in the area five minutes before the fall, does not necessarily suggest the cashier actually inspected the area; she simply walked through. In addition, the surveillance video does not show that anyone spilled any type of liquid on the floor in that area for at least an hour before plaintiff's fall.

In reviewing the summary judgment entered in Wal-Mart's favor, we apply the same standard that bound the trial judge. Estate of Hanges v. Metropolitan Prop. & Cas. Ins. Co., 202 N.J. 369, 378 n.3 (2010); Greenberg v. Pryszlak, 426 N.J. Super. 591, 603 n.7 (App. Div. 2012). That standard precludes the entry of summary judgment if "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, supra, 142 N.J. at 540.

Viewing the video surveillance tape and the other sworn statements in the light most favorable to plaintiff leads to the conclusion that a rational jury could find the cashier did not inspect the area five minutes before plaintiff's slip and fall but only walked through without looking and, also, that the slippery condition existed for a considerable period of time -- at least an hour -- before the fall. Because the location in question -- the checkout area near the exit -- was an area frequented by customers as much if not more often than other areas of the business, a jury would be entitled to conclude from the evidence adduced in opposition to summary judgment that Wal-Mart knew or should have known of the dangerous, slippery condition and that it posed a hazardous condition for customers.

Reversed.