DANIEL PETERS v. AVITEX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DANIEL PETERS,

Plaintiff-Appellant,

v.

AVITEX; AVI LAZAROVITZ,

Defendant-Respondents.

__________________________________

October 28, 2013

Submitted October 21, 2013- Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0576-11.

Law Offices of Jonathan F. Marshall, attorneys for appellant (Richard A. Amdur, Jr., on the brief).

Duncan MacDonald & Herforth, attorneys for respondents (Peter T. Mensching, on the brief).

PER CURIAM

Plaintiff Daniel Peters appeals from the December 3, 2012 summary judgment dismissal of his slip-and-fall personal injury action. We affirm.

I.

Because this matter comes to us from the motion court s grant of summary judgment in favor of defendants (the moving parties), we view the evidence in the light most favorable to Peters. Polzo v. Cnty. of Essex, 209 N.J. 51, 56 n.1 (2012).

On December 14, 2010, Peters was injured at his workplace in Newark, which was owned by defendants. He claims that he slipped and fell on a wet substance on the bathroom floor. At his deposition, Peters testified to the happening of the incident:

I opened the door, I took a few steps in, next thing I knew I was laying on my back. My right side hit the floor and my back, neck, arm, and I sat up and I was wet and I saw water on the floor, I was dazed, then [I] went back into the office from what I recall.

Although a co-worker was present in Peters's office, no one witnessed the fall in the bathroom. Afterwards, according to Peters's deposition, the co-worker "went in there I think and said that 'You slipped on water' and that she was going to notify the manager right away." Not feeling well, Peters immediately left the premises and went home.1

Peters never saw water on the bathroom floor at any time before the incident. He never complained to defendants about water being on the bathroom floor, and did not know of anyone else who ever made such complaints. Peters conceded at his deposition that he did not see the source of the water on the bathroom floor.

Peters filed the present action in the Law Division on January 31, 2011. Following discovery, defendants moved for summary judgment. In response to that motion, Peters submitted an affidavit dated August 16, 2012,2 which stated the following:

Initially after the fall, I was shaken up. I wasn't paying attention to where the water was coming from. I got my composure and sat up on the floor. It was then that I discovered the water coming from a leaking pipe. Also, my co-worker . . . went into the bathroom and confirmed the water coming from a leaking pipe.[3]

The motion judge, who had been provided with Peters's deposition testimony, commented on the discordance between the deposition testimony and the affidavit by calling it "an interesting new twist." Nevertheless, the judge found that any inconsistency did not "make[] for an issue of material fact. The real issue is, did th[e] defendant[s] have notice of this condition . . . to sustain a cause for negligence." Finding that "there is no proof at all that there was any notice on the part of the defendant[s] that there was notice to them that there was a pipe leaking in the bathroom," the judge granted summary judgment and dismissed Peters's complaint. This appeal followed.

II.

Summary judgment is appropriate 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). Under this rule, "[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." Ibid.; see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

The party opposing summary judgment "'must do more than simply show that there is some metaphysical doubt as to the material facts[,]'" Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3rd Cir. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993)), as "[c]ompetent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005), appeal dismissed, (Jan. 3, 2006)).

We review the matter de novo and are governed by the same standard governing the motion court under Rule 4:46-2(c). Khandelwal v. Zurich Ins. Co., 427 N.J. Super. 577, 585 (App. Div. 2012). Thus, the "'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" McDade v. Siazon, 208 N.J. 463, 473 (2011) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010)) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

To establish premises liability, Peters bears the burden of proving that the premises owners breached the duty of care owed to him. Jerista v. Murray, 185 N.J. 175, 191 (2005). Under New Jersey law, "[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is in the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). This duty arises out of the fact that business owners "are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997).

Owners of premises generally are not liable for injuries caused by defects for which they had no actual or constructive notice and no reasonable opportunity to discover. Nisivoccia, supra, 175 N.J. at 563; Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). For that reason, "[o]rdinarily an injured plaintiff . . . must prove, as an element of the cause of action, that the defendant[s] had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563.

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). "[T]he 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).

The summary judgment record in the present appeal convincingly establishes the lack of actual or constructive notice of the alleged leaking pipe by defendants. The motion court's grant of summary judgment in favor of defendants was entirely correct.

1 In an "Incident/Accident Report" prepared by Peters on December 17, 2010, he indicated that the reason why the incident occurred was due to a "leaking pipe." An employee of defendants testified that he inspected the bathroom soon after Peters left the building on December 14, 2010, and stated, "There was no leak."

2 Peters's deposition was conducted on February 12, 2012.

3 Neither an affidavit nor a deposition excerpt from the co-worker was submitted in opposition to the motion for summary judgment.