AKUA OSEI-AMOAKO v. STAFFORD FEC

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5594-15T2

AKUA OSEI-AMOAKO,

        Plaintiff-Appellant,

v.

STAFFORD FEC, d/b/a FUNPLEX,
LP PARTNERS, and RANDY LAHAN,

     Defendants-Respondents.
________________________________

              Argued October 3, 2017 – Decided December 12, 2017

              Before Judges Fisher and Sumners.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Docket No.
              L-0039-14.

              Brian P. McElroy, attorney, argued the cause
              for   appellant   (Levinson    Axelrod,   PA,
              attorneys; Brian P. McElroy, on the brief).

              Dennis M. Marconi, attorney, argued the cause
              for respondents (Barnaba & Marconi, LLP,
              attorneys; Dennis M. Marconi, on the brief).

PER CURIAM


        Plaintiff broke her ankle from a slip and fall accident on

foam balls while supervising her four-year-old son's play in an
amusement   attraction,      Foam   Frenzy    at     the   Funplex,   owned   and

operated by defendants.        Judge Yolanda Ciccone granted summary

judgment to defendant, determining plaintiff's injury was not

caused by defendant's breach of duty but due to her own conduct.

On appeal, plaintiff contends the judge erred because the facts

support plaintiff's theory that defendants breached their duty of

providing a safe premise by permitting too many foam balls to

remain on the floor, which were the proximate cause of plaintiff's

accident.     We disagree and affirm substantially for the reasons

stated by Judge Ciccone in her opinion placed on the record on

August 5, 2016.      We add the following comments.

      The Foam Frenzy is an attraction for children, ages four

through twelve, to play in the midst of 8000 to 10,000 foam balls

throughout the attraction, with adult supervision, if necessary.

Participants chase each other, throw the foam balls at each other

and   attempt   to   dodge    the   foam     balls    while   playing   in    the

attraction.     Plaintiff was supervising her son when she alleged

she was walking towards him and slipped on one of more than fifty

foam balls in her immediate area, which blended into the carpeted

floor.    Plaintiff contends that before she fell, she saw two

employees trying to fix an inoperable vacuum that is used by

participants to suck up and recirculate the loose foam balls back

onto designated areas.

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      Plaintiff's expert believed defendants created a dangerous

condition.     He opined that plaintiff's fall resulted from the lack

of clear pathways, which prevented plaintiff to avoid stepping on

the   over-accumulation         of    foam       balls   that   were     difficult      to

distinguish from the black and multicolored patterned carpet.

      Following completion of discovery, defendants filed motions

for summary judgment and to bar plaintiff's expert's report as net

opinion.      As for the summary judgment                  motion, Judge Ciccone

recognized that plaintiff was an invitee and that defendants owed

her a "duty of reasonable care to maintain [a] safe environment

for   doing    the     acts   which     [were]       within     the     scope    of   the

initiation."        The judge found that defendants did not breach that

duty and there was no dangerous condition in the Foam Frenzy,

which   caused      plaintiff    to    break       her   ankle.       Since     the   main

component of the attraction was to play in an area overfilled with

foam balls and plaintiff's injury was the result of slipping on a

foam ball, the judge determined that no reasonable juror could

find defendants breached its duty of care when plaintiff was

engaged in the very activity that she and her son expected.                             In

reviewing     photos    of    the     attraction,        the    judge    rejected     the

contention by plaintiff's expert that the pastel-colored foam

balls were camouflaged by the black carpeted floor.                             She also

dismissed     the    expert's    argument         that   the    concrete      floor   was

                                             3                                   A-5594-15T2
inappropriate; reasoning that the floor had been inspected and

approved by the State of New Jersey. Judge Ciccone did not address

the motion to bar plaintiff's expert's report, finding it was

unnecessary after granting summary judgment.

     Appellate review of a ruling on a motion for summary judgment

is de novo, applying the same standard governing the trial court.

Davis v. Brickman Landscaping, Ltd., 
219 N.J. 395, 405 (2014).

Thus, we consider, as the motion judge did, "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."       Id. at 406 (quoting Brill v. Guardian

Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995)).          "If there is no

genuine issue of material fact," an appellate court must then

"decide whether the trial court correctly interpreted the law."

DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 
430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).                  We

accord   no   deference   to   the   trial   judge's   legal   conclusions.

Nicholas v. Mynster, 
213 N.J. 463, 478 (2013) (citing Zabilowicz

v. Kelsey, 
200 N.J. 507, 512-13 (2009)).

     In a negligence action, a plaintiff bears the burden of

proving four elements: (1) a duty of care, (2) a breach of that

duty, (3) proximate cause, and (4) actual damages.             D'Alessandro

                                      4                             A-5594-15T2
v. Hartzel, 
422 N.J. Super. 575, 579 (App. Div. 2011) (citation

omitted).     "The duty owed to a plaintiff is determined by the

circumstances       that   brought   [her]   to   the    property."      Ibid.

(citation omitted).        The mere occurrence of an incident causing

an injury is not alone sufficient to impose liability.                 Long v.

Landy, 
35 N.J. 44, 54 (1961).        The plaintiff must establish facts

proving negligence, not inferences "based upon a foundation of

pure conjecture, speculation, surmise or guess."              Ibid.

     In the context of a business establishment, the owner "owe[s]

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."    Nisivoccia v. Glass Gardens, Inc., 
175 N.J. 559, 563

(2003).   This duty of 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."        Ibid.

     Guided by these principles, Judge Ciccone's decision to grant

summary judgment is legally unassailable.            Plaintiff's appellate

arguments     are    without   sufficient    merit      to   warrant   further

discussion.    R. 2:11-3(e)(1)(E).

     Affirmed.




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