RONALD WIERZBOWSKI v. SAM'S EAST, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RONALD WIERZBOWSKI and

SANDRA WIERZBOWSKI,

Plaintiffs-Appellants,

v.

SAM'S EAST, INC., d/b/a SAM'S

CLUB, WAL-MART STORES, INC.,

Defendants-Respondents,

and

WEST WINDSOR PROPERTY INVESTORS

L.P.,

Defendant.

__________________________________

July 30, 2015

Argued January 6, 2015 Decided

Before Judges Nugent and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2931-11.

Paul N. Daly argued the cause for appellants (Stark & Stark, attorneys; Mr. Daly and Bryan M. Roberts, on the brief).

Floyd G. Cottrell argued the cause for respondents (Cottrell Solensky & Semple, P.A., attorneys; Mr. Cottrell, on the brief).

PER CURIAM

Plaintiffs Ronald and Sandra Wierzbowski appeal the summary judgment dismissal of their personal injury action against Sam's East, Inc., and Wal-Mart Stores, Inc. Plaintiffs contend the motion record established that genuinely disputed issues of fact existed as to whether defendants either caused or had constructive notice of the turned-up corner of an anti-slip mat - the condition that caused plaintiff Ronald Wierzbowski to trip and fall - and that the trial court erred by ruling to the contrary. Plaintiffs also contend that defendants' summary judgment motion should have been denied because defendants deprived plaintiffs of the opportunity to inspect the mat. Finding no merit in plaintiff's arguments, we affirm.

Plaintiff Ronald E. Wierzbowski tripped and fell in a Sam's Club store in West Windsor Township in January 2010. In November 2011 plaintiffs commenced their personal injury action. There is no evidence in the record that during the intervening year and ten months plaintiffs notified defendants of their intention to file a lawsuit, demanded that defendants preserve the mat involved in the accident, or demanded that defendants permit plaintiffs and their representatives to inspect the mat.

Defendants filed answers and the parties undertook discovery. Plaintiffs signed a stipulation of dismissal with prejudice as to defendant West Windsor Property Investors, L.P. Thereafter, the remaining defendants, Sam's East, Inc., and Wal-Mart Stores, Inc., filed a summary judgment motion, which the court granted following oral argument. Plaintiffs appealed.

The summary judgment motion record included plaintiffs' complaint and interrogatory answers as well as the transcripts of plaintiffs' deposition testimony, defendant Sam's East, Inc.'s answers to interrogatories, and the deposition transcripts of two of Sam's East, Inc.'s employees. The record discloses the following facts.

On the day of the accident, in the early afternoon, plaintiffs walked into the Sam's Club store. They had been members for years. Although the weather was clear, there had been snow flurries earlier in the day. Sandra Wierzbowski was pushing a shopping cart and walking in front of her husband. There was a "greeter" somewhere near the door checking membership cards. Other customers were walking through the doorway at the same time. According to Sandra Wierzbowski, "[t]here was a large crowd of people entering the store simultaneously."

Neither plaintiff observed the anti-slip mat before Ronald Wierzbowski fell. In his deposition, Ronald Wierzbowski gave this account of his fall

Q: What happened when you stepped onto the mat?

A: I felt my right leg - - my right foot suddenly become immobilized and I just went down.

Q: So your right foot caught?

A: Caught the corner of the mat.

Ronald Wierzbowski made no observations of the mat after he fell. Someone came and rolled up the mat.

Sandra Wierzbowski turned to look at her husband after she heard "an exclamation from him." When she saw him, he was already falling forward. He fell and struck the floor with his knee, elbow, shoulder, and head. "His whole right side [was] basically bang." His glasses "smashed." After her husband fell, Sandra Wierzbowski looked at the mat. It was a "large industrial gray felt and black rubber mat[]." She described its condition

Q: And what did you see? What did you observe about the condition of the mat?

A: I saw the end of it, a rolled up condition. If you were to lay it flat, it was - - it would stay in this type of position on this - - not all of it. Just kind of like on an end.

Q: Is it fair to say one corner was dog eared?

A: Yes. It was basically like - -

MR. DALY: Stickup up . . . on the corner?

A: Yes.

Sandra Wierzbowski told an employee to get the store manager. She later talked to someone she believed was an assistant manager. The man had her fill out a paper. She told him her husband had tripped over a raised corner of the mat

A: I said, look at this, no wonder he fell. Look at the corner of it. The employee went sort of sheepishly, yeah, geez, and it was like no sooner than that, he said, roll it up, and the carpet was rolled up.

Slawomir Dziuba, an assistant manager at the Sam's Club store on the day the accident occurred, did not recall seeing the mat that was involved. Dziuba explained that the door greeters put out the mats if the weather is inclement. During such weather, one mat is placed by the store's entrance door and one by the exit. Dziuba estimated the mats were approximately ten feet long and made of rubber bottom with some kind of fabric or material on the top. When stored, they are rolled up: "they have to be kind of wound up to be able to be stored."

Dziuba also explained the function of a door greeter

They're there to greet the member, member service, smile, hello, maintain the area, if there's any trash on the ground, if members need help to their cars, they can get a car associate. They check receipts going out the door. They're the ones that if they're in the area and they see anything, they take care of it.

According to Dziuba, a door greeter would probably be located within approximately ten feet of the anti-slip mat. When asked if "it would be visible [to the greeter] if this mat were curled[,]" Dziuba responded, "[y]es, depending on the location, because there's always members coming in that you have to greet so that would be your primary job - - their primary job, making sure you greet all the members coming in so as they look around in between their responsibilities." Dziuba did not "remember specifically" who the door greeter was at the time of the accident.

Claire Marion, the Sam's Club store's personnel training coordinator, confirmed that one of the jobs of door greeters was to keep an eye out for dangerous conditions that might be present. Marion did not know the name of the greeter who was greeting members when the accident occurred.

In response to an interrogatory concerning procedures for inspection of the premises, Sam's East, Inc., responded

Store employees conduct strategic maintenance sweeps of store ensuring that the premises are free of hazards at specific intervals. Additionally, associates in each department are charged with the responsibility of cleaning up [any] fallen or discarded merchandise and quickly cleaning any spills. The area of the store where plaintiff allegedly fell is the responsibility of the people greeters associates who are positioned near the store entrance to greet customers.

Following oral argument, the court granted summary judgment and dismissed the complaint against defendants Sam's East, Inc., and Wal-Mart Stores, Inc. The court noted there was no evidence that Sam's East, Inc., had actual notice of the condition of the floor mat. The court determined that no reasonable juror could conclude Sam's East, Inc., had constructive notice of the mat's turned-up corner. The court explained that any conclusion the jury could draw about what caused the corner of the mat to turn up would be speculative. The court entered an implementing order from which plaintiffs appealed.

When a party appeals from an order granting summary judgment, our review is de novo and we apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso P.A., 189 N.J. 436, 445-46 (2007); 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 there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) and review the legal conclusions of the trial court de novo, without any special deference, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Sam's East, Inc., as the possessor and operator of Sam's Club, owed to invitees such as plaintiffs a duty of reasonable care to guard against any dangerous conditions on the property of which Sam's East, Inc., either knew about or should have discovered. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993). "That standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." Ibid. (citing Handleman v. Cox, 39 N.J. 95, 111 (1963); Restatement (Second) of Torts 343 (1969)). "Ordinarily an injured plaintiff asserting a breach of that duty must prove, as an element of the cause of action, that the 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). A plaintiff can establish that a business owner had constructive knowledge of a danger by establishing that the owner "had an adequate opportunity to discover the danger and therefore would have discovered it had [the owner or occupier's employees] been reasonably alert." Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 186 (1954) (citations and internal quotation marks omitted).

Plaintiffs first argue that a jury could reasonably have inferred from Sandra Wierzbowski's testimony that the mat's dog-eared condition existed after her husband fell. Plaintiffs assert they are "entitled to the reasonable inference that the heavy-duty, rubber and fabric mat would not remain in a 'rolled-up' or 'dog-eared' condition, if it had been laying flat on the floor at the time of the fall." Plaintiffs further assert that they are entitled "to the reasonable inference that the 'rolled-up' condition existed for some time before the fall, presumably when placed on floor prior to the fall, as a 'rolled-up' appearance would not be created by the fall itself, but, instead, by the manner that the mat was stored." Plaintiffs argue that had the door greeter been making the observations his job required, he had ample time to observe the dangerous condition presented by the mat.

We disagree with plaintiff and agree with the trial court that plaintiffs' assertions amount to mere speculation. Plaintiffs produced no expert testimony concerning the condition of the mat or the materials from which it was made. Nor did plaintiffs develop through lay testimony or certifications any evidence from which a jury could have reasonably inferred anything about the duration of the mat's condition. Plaintiffs' theories about how the mat became dog-eared, how long that condition existed, and whether the greeter had sufficient time to observe it, consisted of nothing more than conjecture.

Although defendants claim the rolled-up, dog-eared condition of the mat could have been created by the way the mats were stored, there is no evidence that presents a probability that such was the case. Plaintiffs produced no evidence concerning the pliability or characteristics of the materials from which the mats were made, nor did they provide any evidence that storing mats in a rolled-up manner could create a defect. The state of the mats that Sandra Wierzbowski observed could have resulted from any of a number of causes, including the activities of the patrons who entered the Sam's Club store immediately before or at the same time plaintiffs entered the store. There are simply no facts from which a jury could conclude with any degree of probability, as distinguished from remote possibility, when part of the mat became "defective" and what caused that condition.

Plaintiffs also argue that the trial court improperly granted defendants' motion because defendants did not give plaintiffs an opportunity to inspect the mat, did not retain the mat, and hid, lost or destroyed the mat "thereby depriving the plaintiffs of the most critical evidence to their case." Plaintiffs overlook the fact that for more than one and one-half years following the accident, they never demanded that defendants preserve the mat or requested the opportunity to inspect the mat. Generally, "mere constructive notice of a potential third-party action based solely on the happening of an injury is insufficient" to establish a negligent spoliation claim. Gilleski v. Cmty. Med. Ctr., 336 N.J. Super. 646, 655 (App. Div. 2001). Rather, defendants have a duty to preserve evidence if there exists "an agreement to preserve, or a voluntary undertaking with reasonable and detrimental reliance, or a specific request[.]" Ibid. (citations and internal quotation marks omitted); see also Rosenblit v. Zimmerman, 166 N.J. 391, 406-07 (2001) (explaining that elements of a fraudulent concealment action are that defendant is under a legal obligation to disclose evidence in connection with an existing or pending litigation; the evidence is material to the litigation; the plaintiff could not reasonably have obtained access to the evidence from another source; the defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation; and, plaintiff was damaged by having to rely on an evidential record that did not contain the evidence defendant concealed).

In the case before us, plaintiffs produced no evidence that Sam's East, Inc., voluntarily undertook to preserve the mat, accepted responsibility for the mat with knowledge of a pending or potential lawsuit, or disregarded a specific request from plaintiffs to either preserve the mat or permit them to inspect it. Consequently, plaintiffs were not entitled to a spoliation inference.

Affirmed.