ESTATE OF DIONYSIOS MARKETOS v. CAREPOINT HEALTH

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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         parties in the case and its use in other cases is limited. R.1:36-3.
         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-3040-16T4


ESTATE OF DIONYSIOS MARKETOS,

        Plaintiff-Appellant,

v.

CAREPOINT HEALTH,

     Defendant-Respondent.
______________________________

              Submitted March 21, 2018 – Decided June 15, 2018

              Before Judges Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No. L-
              2292-15.

              Matsikoudis and Fanciullo, LLC, attorneys for
              appellant (Derek Fanciullo, on the brief).

              Farkas   &   Donohue,  LLC,   attorneys for
              respondent (Evelyn C. Farkas, of counsel;
              Christine M. Jones, on the brief).

PER CURIAM

        The estate of Dionysios Marketos appeals from the March 3,

2017     order     granting     summary    judgment     to    Carepoint     Health

(Carepoint) and dismissing plaintiff's slip and fall complaint.
       Marketos was a priest who, on February 23, 2015, was giving

last rites to a member of his congregation in the Bayonne Medical

Center when he slipped and fell in the patient's hospital room,

breaking his hip.        Carepoint's summary judgment motion alleged

that Marketos did not establish negligence.                The trial court found

there was no actual or constructive notice of a dangerous condition

and that mode of operation did not apply.                  On November 20, 2016,

after   being   deposed,      Marketos       died   from    amyotrophic   lateral

sclerosis (ALS).     His estate was substituted as plaintiff.

       "Summary judgment is appropriate 'when no genuine issue of

material fact is at issue and the moving party is entitled to a

judgment as a matter of law.'"               Lee v. Brown, 
232 N.J. 114, 126

(2018) (quoting Steinberg v. Sahara Sam's Oasis, LLC, 
226 N.J.
 344,    366   (2016));   R.    4:46-2(c).           "We    review   appeals    from

determinations of summary judgment by employing the same standards

governing the trial court."       Lee, 
232 N.J. at 126.             Plaintiff must

be given the benefit of all favorable inferences.                   R. 4:46-2(c).

       The admissible evidence did not show a factual dispute that

would defeat summary judgment.           Marketos did not know what caused

his fall, nor did he notice anything on the floor.                    The nurse's

report did not list a cause.             She could not remember anything

about the fall when she was deposed.                      Five hospital reports




                                         2                                A-3040-16T4
contained the hearsay information that plaintiff slipped on ice.

A housekeeping employee submitted an affidavit stating:

          I recall the patient saying that Father
          Dionysios must have fallen because the floor
          was wet, apparently because she had spilled
          her ice water. I checked the floor and noticed
          a wet spot, which I mopped up.

It is not known how long the wet spot was there or even whether

the wet spot came about before, during or after plaintiff was

treated after his fall on the floor of the hospital room.                The

dying patient's statement is hearsay also.

     "Hearsay is defined as 'a statement, other than one made by

the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.' Hearsay is

inadmissible   unless   it   falls       into   one   of   the   recognized

exceptions." State v. Kuropchak, 
221 N.J. 368, 387 (2015) (quoting

N.J.R.E. 801(c) and citing N.J.R.E. 802).

     Even if evidence existed that Marketos slipped on ice water

spilled by the patient, there was no testimony that the hospital

was negligent or violated any policy concerning cleaning up spills.

     "Under the mode-of-operation rule, a business invitee who is

injured [on the premises of the business] is entitled to an

inference of negligence and is relieved of the obligation to prove

that the business owner had actual or constructive notice of the

dangerous condition that caused the accident."             Prioleau v. Ky.


                                     3                             A-3040-16T4
Fried Chicken, Inc., 
223 N.J. 245, 248 (2015).          "The rule has only

been   applied     to   settings   such   as   self-service   or   a   similar

component of the defendant's business, in which it is reasonably

foreseeable that customers will interact directly with products

or services, unassisted by the defendant or its employees."                  Id.

at 249.    The "'factors bearing on the existence of a reasonable

probability' that a dangerous condition would occur [are]: 'the

nature of the business, the general condition of the premises, and

a pattern of conduct or recurring incidents.'" Id. at 258 (quoting

Bozza v. Vornado, Inc., 
42 N.J. 355, 360 (1964)).              The hospital

room was not a self-service cafeteria and did not conform to the

requirements of a mode-of-operation facility.

       Without actual or constructive notice to defendant of the

unknown condition that caused the fall, the motion court properly

granted summary judgment dismissing the case.

       Affirmed.




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