ELLA E. JACOB v. MARLBORO GASTROENTEROLOGY PC

NOT FOR PUBLICATION WITHOUT THE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-0031-18T2

ELLA E. JACOB and ZIV JACOB,
her husband,

          Plaintiffs-Appellants,

v.

MARLBORO GASTROENTEROLOGY,
PC, PREMIER BUILDING SERVICES,
INC., PREMIER BUILDING SERVICES
LIMITED LIABILITY COMPANY, and
PREMIER BUILDING SERVICE
LIMITED, INC.,

     Defendants-Respondents.
_____________________________________

                   Argued October 2, 2019 - Decided October 23, 2019

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Docket No. L-4159-16.

                   Theresa McGuire argued the cause for appellants (Law
                   Office of Herbert I. Ellis, PC, attorneys; Theresa
                   McGuire and Jonathan A. Ellis, on the briefs).
            William F. Waldron argued the cause for respondent
            Marlboro Gastroenterology PC (Marshall Dennehey
            Warner Coleman & Goggin, attorneys; William F.
            Waldron, of counsel; Patricia M. McDonagh, on the
            brief).

            Felicia Gretchen Smith argued the cause for respondent
            Peter Garbera d/b/a Premier Building Services (Law
            Office of Linda S. Baumann, attorneys; Felicia
            Gretchen Smith, of counsel and on the brief; Jessica
            Kim, on the brief).

PER CURIAM

      Plaintiffs Ella E. Jacob (Jacob) and her husband Ziv Jacob appeal from

the trial court's order granting summary judgment dismissal of their slip -and-

fall complaint. While working for a medical practice, Jacob slipped on a hallway

floor on her way to retrieve medicine for one of the physicians. Defendant

Marlboro Gastroenterology, PC (Marlboro), leased the space to Jacob's

employer. Defendant Peter Garbera operated the company, Premier Services,

which cleaned the floor. 1

      Having considered plaintiffs' arguments in light of the record and

applicable principles of law, we affirm summary judgment for Garbera, because

plaintiffs failed to present sufficient evidence of negligence. But, we reverse


1
    Plaintiffs' complaint identified Garbera's company by various corporate
names, but it apparently is a sole proprietorship. We therefore refer to Garbera
as defendant.
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summary judgment for Marlboro, because plaintiffs presented sufficient

evidence, albeit disputed, that Marlboro was on notice that the floor was

dangerously slippery, but failed to remediate the condition.

      We view the facts in a light most favorable to plaintiffs as the non-moving

parties. Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995).

According to Jacob, the hallway where she slipped and fell had been noticeably

slicker than usual for several days. One of the patients complained to Jacob that

she slipped and nearly fell. Jacob told Sandy O'Brien, the assistant to Marlboro's

office manager, that the floor was dangerous and may have been over -waxed.

O'Brien assured Jacob she would inform her boss, Sarah Weiner.

      Then, a physician also complained about the floor, prompting Jacob to

speak to Weiner herself. She told her that "somebody will get hurt here," noting

that two people had already complained. Weiner said she would bring it to the

cleaner's attention.

      The condition of the floor was unchanged when Jacob herself slipped and

struck her shoulder on a scale as she fell to the floor. Plaintiffs alleged that

Garbera and Marlboro negligently created, allowed, or maintained the dangerous

condition of the floor. They alleged that Jacob was a business invitee.




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      In depositions, Weiner and Garbera recalled no complaints about the floor.

Although Garbera did not personally supervise or inspect the work of his

employees, he asserted that his crews cleaned, but did not wax the floors at

Marlboro. He did not keep or maintain records of the persons assigned to clean

around the time of Jacob's complaints, or of the products they used.

      In support of defendants' motions for summary judgment, they argued that

plaintiffs failed to establish there was a dangerous condition. Defendants argued

that plaintiffs lacked evidence proving the floor was over-waxed, or identifying

what made the floor slippery. They also contended plaintiffs needed an expert

to establish that the condition of the floor was hazardous, or deviated from

reasonable standards of care.

      The trial judge agreed that plaintiffs failed to marshal proof that the floor

was over-waxed, to identify the substance or cause of the slippery condition, or

to present an expert to establish a breach of reasonable standards of care in the

application of cleaning products. That failure doomed plaintiffs' complaint. The

court observed that one may not infer negligence solely from the fact of an

accident, in this case, a slip and fall. The court also held that the doctrine of res

ipsa loquitur did not apply.




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      Reviewing the trial court's order de novo, applying the same summary

judgment standard as it did, see Henry v. N.J. Dep't of Human Servs.,  204 N.J.
 320, 330 (2010) (describing standard of review), we conclude, as did the trial

court, that Garbera is entitled to judgment as a matter of law; but we reach the

opposite conclusion as to Marlboro. See Brill,  142 N.J. at 528-29 (setting forth

summary judgment standard under R. 4:46-2).

      Turning first to the claim against Garbera, plaintiffs failed to meet their

burden to prove negligence by presenting evidence that, among other things,

Garbera breached a duty of care. See Townsend v. Pierre,  221 N.J. 36, 51 (2015)

(identifying four elements of a negligence claim: duty of care, breach of the

duty, proximate cause, and actual damages); Khan v. Singh,  200 N.J. 82, 91

(2009) (stating that a plaintiff ordinarily bears the burden to prove negligence).

Although plaintiff contends the floor was over-waxed, she did not observe the

wax, nor provide any other proof the floor was waxed. The evidence "is so one-

sided that [Garbera] must prevail as a matter of law" on the claim that his

employees negligently treated the floor. See Brill,  142 N.J. at 536 (quoting

Anderson v. Liberty Lobby, Inc.,  477 U.S. 242, 252 (1986)).

      Nor does the doctrine of res ipsa loquitur salvage plaintiffs' claim against

Garbera. See Khan,  200 N.J. at 91 (stating that negligence may be inferred under


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the doctrine where "(a) the occurrence itself ordinarily bespeaks negligence; (b)

the instrumentality was within the defendant's exclusive control; and (c) there is

no indication in the circumstances that the injury was the result of the plaintiff's

own voluntary act or neglect"). Slipping on a floor does not, without more,

bespeak negligence. See Overby v. Union Laundry Co.,  28 N.J. Super. 100, 105

(App. Div. 1953). Furthermore, Garbera did not have exclusive control of the

floor. The medical practices and their employees exercised a measure of control.

In sum, Garbera was entitled to summary judgment.

      We reach a different conclusion as to Marlboro. Plaintiffs claim not that

Marlboro negligently created the slippery condition, but that Marlboro

negligently ignored it after Jacob brought it to O'Brien's and Weiner's attention.

Marlboro acknowledges that it owed a duty of care to Jacob, as a business

invitee. See Brown v. Racquet Club of Bricktown,  95 N.J. 280, 290-91 (1984).

"A proprietor generally is not liable for injuries caused by defects of which he

had no actual or implied knowledge or notice, and no reasonable opportunity to

discover." Id. at 291. However, actual knowledge may be established by prior

accidents, see Bohn v. v. Hudson & Manhattan R. Co.,  16 N.J. 180, 186 (1954),

or prior complaints, see Shipp v. Thirty-Second St. Corp.,  130 N.J.L. 518 (E. &

A. 1943).


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      Granting plaintiffs all favorable factual inferences, Marlboro was on

notice, before Jacob's accident, that the floor was dangerous. Although plaintiffs

were obliged to present proof about the origin of the slippery condition in order

to hold Garbera liable for it, plaintiffs had no similar obligation with respect to

Marlboro.    It was enough that Marlboro was on notice of the dangerous

condition, however caused, because Marlboro, as the premises owner, was

obliged to remediate it.

      Once notified, Marlboro did nothing. "Negligence may consist of entire

inaction." Bohn,  16 N.J. at 186. Plaintiffs presented sufficient evidence that

the floor was dangerous. Before Jacob's accident, two people aside from Jacob

complained the floor was unusually slick and dangerous.               One person

momentarily lost her balance but caught herself. Jacob twice spoke to Marlboro

employees.

      Plaintiffs were not required to present expert testimony regarding the co-

efficient of friction on the floor, or otherwise establish that the floor did not

satisfy some prevailing technical standard. It is enough, under our case law, for

a plaintiff to establish that a floor was unusually slippery, and that the premises

owner was placed on notice of that through the complaints or prior mishaps of

others.


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      In Shipp, the Court of Errors and Appeals affirmed a plaintiff's verdict,

based in part on evidence of prior complaints that a department store floor was

unusually slippery:

            In view of the nature of the proof in this case
            concerning the extent of the condition of the floor of
            defendant's premises, from which it might be fairly
            concluded that it was beyond the scope of the ordinary
            condition of even polished floors in such premises, the
            experience of not only the plaintiff, but other patrons of
            the store, with respect to traversing the floor under the
            same condition, the fact that by complaint notice had
            been previously brought home to the defendant, the
            state of the case at the close of the presentation of the
            plaintiff's evidence was such that the trial judge might
            not take away from the jury the question of whether or
            not the defendant was negligent and the question of
            proximate cause.

            [Shipp,  130 N.J.L. at 522–23.]

      In Sherwood v. Miles Shoes of Toms River, Inc.,  54 N.J. Super. 129, 135-

36 (App. Div. 1959), we distinguished Overby, and held that the defendant was

not entitled to dismissal of a slip-and-fall claim. We highlighted the proofs that

the assistant store manager noticed the floor was slippery after it was waxed the




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previous evening; customers complained; and one employee slipped before the

plaintiff did. Id. at 136. No expert testimony was evidently introduced. 2

      In sum, Marlboro was not entitled to summary judgment dismissal of

plaintiffs' complaint.

      Affirmed in part, reversed in part, and remanded. We do not retain

jurisdiction.




2
  Although we noted that the plaintiff in Bohn presented an expert, see Bohn v.
Hudson & Manhattan R. Co.,  30 N.J. Super. 89, 95 (App. Div.), aff'd,  16 N.J. 180 (1954), the Supreme Court did not mention the expert, let alone state that
an expert witness's testimony was essential; rather, the Court affirmed the
plaintiff's verdict on the basis of testimony by various witnesses that the stair
upon which the plaintiff slipped was "all slippery," "like a piece of stainless
steel," and "almost like a sheet of glass."  16 N.J. at 189.
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