ENRICO ANDRICOLA v. KENNEDY UNIVERSITY HOSPITAL INC.

NOT FOR PUBLICATION WITHOUT THE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-2842-16T2

ENRICO ANDRICOLA,

        Plaintiff-Appellant,

v.

KENNEDY UNIVERSITY HOSPITAL,
INC. and SODEXO, INC.,

     Defendants-Respondents.
_______________________________

              Submitted April 9, 2018 - Decided May 16, 2018

              Before Judges Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No.
              L-0964-14.

              Spear, Greenfield, Richman & Weitz, PC,
              attorneys for appellant (Marc F. Greenfield
              and Jeremy M. Weitz, on the brief).

              Parker McCay, PA, attorneys for respondent
              Kennedy University Hospital, Inc. (Thomas M.
              Walsh and Andrew S. Winegar, of counsel;
              Kathryn A. Somerset, on the brief).

              Ahmuty, Demers & McManus, attorneys for
              respondent Sodexo, Inc. (Glenn A. Kaminska,
              on the brief).

PER CURIAM
    Plaintiff Enrico Andricola appeals from a summary judgment

dismissing his premises liability complaint against defendant

Kennedy University Hospital, Inc. and its cafeteria manager

Sodexo, Inc.   We affirm.

    Viewed in the light most favorable to plaintiff, the facts

are as follows.   While visiting the Hospital's cafeteria for

lunch, as he did a couple of times a week, plaintiff slipped and

almost fell on some sort of clear slippery substance as he

walked with his tray to a table after paying for his food.      He

did not see a puddle on the smooth, hard floor and thought the

substance more likely grease or wax than a liquid.   Although he

limped to a table and began eating his lunch, the pain in his

ankle did not permit him to finish it.

    Plaintiff reported the accident to hospital personnel, who

took a report and arranged for him to be examined in the

Hospital's emergency room.   He did not go back to see what

caused him to fall and did not notice if any of the substance

stuck to his shoe.   No one apparently witnessed the accident or

saw anything on the floor.   Plaintiff testified at deposition he

did not fall near the soda machines.

    Representatives of the Hospital testified at deposition the

cafeteria maintains daily cleaning schedules and that dietary

staff, the employees on the cafeteria line and cashiers, are

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trained to immediately clean up any spills.   In addition,

employees are trained they must put out wet floor signs, which

are stored in three different areas for ready access, to alert

patrons to a spill or clean up.

    Following discovery, defendants moved for summary judgment,

contending plaintiff failed to carry his burden to show they had

actual or constructive notice of the clear substance on the

floor and was not entitled to rely on the mode of operation

doctrine to relieve him of that showing.   See Prioleau v.

Kentucky Fried Chicken, Inc., 
223 N.J. 245, 260-63 (2015)

(explaining the mode of operation rule).   Specifically,

defendants argued plaintiff's inability to offer any specifics

about the substance on which he slipped left him unable to show

it "was related to a product sold or procured in the cafeteria."

Plaintiff contended he was entitled to a mode of operation

charge at trial because it was "clearly foreseeable and known

that customers of [the Hospital's] cafeteria would bring food

and/or drink into the area where Plaintiff fell, as they had to

pay Defendants for said food and drink in that very area."

    After hearing argument, Judge Kassel granted the motions.

Noting plaintiff's testimony that he slipped while walking from

the cashier to his table and could not say what it was he



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slipped on, the judge concluded plaintiff's evidence was simply

too speculative to permit a mode of operation charge.

    On appeal, plaintiff reprises the arguments he made to the

trial court and contends material disputed facts precluded entry

of summary judgment.   We disagree.

    As the Supreme Court explained in Prioleau, not every

plaintiff slipping in a self-service restaurant is entitled to a

mode of operation charge.    
223 N.J. at 264-65.   To be entitled

to the rebuttable inference of the defendant's negligence a mode

of operation charge provides, a plaintiff must establish "a

nexus between self-service components of the defendant's

business and a risk of injury in the area where the accident

occurred."   Id. at 258, 262.

    Although plaintiff slipped in an area that might reasonably

be affected by the cafeteria's self-service operation, between

the cashier and tables provided for patrons, his inability to do

more than guess at the substance he slipped on prevented him

from establishing a factual nexus between that operation and the

dangerous condition.   See Walker v. Costco Wholesale Warehouse,


445 N.J. Super. 111, 126 (finding the evidence provided a

plausible basis to believe the white "yogurt-like" substance on

which plaintiff slipped could have been cheesecake offered as a

free sample in the store).

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    Plaintiff testified at his deposition the substance was

either "some type of a wax build-up" or "some type of grease and

it was clear."   As "wax build-up" on a vinyl floor could as

easily occur in a full-service restaurant as a self-service

cafeteria, plaintiff cannot establish the dangerous condition

bore any relationship to defendants' self-service method of

business.   See Prioleau, 
223 N.J. at 264 (noting the absence of

any evidence to establish that the location of the plaintiff's

accident was related to a self-service component of the

defendant's business).   Accordingly, we agree with Judge Kassel

that plaintiff's inability to identify the substance on which he

slipped rendered his proofs too speculative to permit a mode of

operation charge.

    Plaintiff's remaining arguments, that factual

determinations as to the nature of the substance and how long it

had been on the floor precluded summary judgment, and that the

evidence supported defendants' constructive notice of the

dangerous condition, are without sufficient merit to warrant

discussion in a written opinion.    See R. 2:11-3(e)(1)(E).

    Affirmed.




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