SARA QUEJADA v. SHOPRITE

NOT FOR PUBLICATION WITHOUT THE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-0923-19T3

SARA QUEJADA,

          Plaintiff-Appellant,

v.

SHOPRITE,

     Defendant-Respondent.
___________________________

                   Argued December 14, 2020 – Decided January 19, 2021

                   Before Judges Messano and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Docket No. L-2456-18.

                   James Bayard Smith, Jr. argued the cause for appellant
                   (John J. Pisano, attorney; John J. Pisano, on the brief).

                   John J. Grossi, III, argued the cause for respondent
                   (Carey & Grossi, attorneys; John J. Grossi, on the
                   brief).

PER CURIAM
      Plaintiff Sara Quejada appeals from the Law Division's October 21, 2019

order granting summary judgment to defendant, Village Super Market of NJ,

LP, improperly pled as ShopRite. Plaintiff alleged she slipped and fell on water

on the store's floor and suffered injuries to her spine as a result. We limit our

review to the record before the motion judge, Mark P. Ciarrocca. Ji v. Palmer,

 333 N.J. Super. 451, 463–64 (App. Div. 2000).

      On July 6, 2018, at approximately 7:00 p.m., plaintiff was shopping with

her daughter at defendant's supermarket when she slipped and fell as they "were

going close to" where patrons "pay." Although neither she nor her daughter saw

anything on the floor before the fall, plaintiff noticed her clothing was wet after

she fell. Plaintiff did not know the source of the water. Her daughter did not

see plaintiff fall because she was in front of her.

      Photographs in the record show plaintiff on the floor of the supermarket

in the area where she fell. 1 One photograph appears to show some liquid on the

floor, although, at her deposition, plaintiff could not say what the substance was

or whether it was the cause of her fall. At her deposition, plaintiff marked a




1
   Plaintiff's deposition testimony failed to explain who took the photograph,
although she said it was taken after she fell and remained on the floor, unable to
stand.
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photograph that is in the record demonstrating where she was in relation to the

checkout counters when she fell.

      Defendant moved for summary judgment, which plaintiff opposed. 2 In a

written opinion supporting the order granting defendant's motion, Judge

Ciarrocca properly summarized the elements of a viable negligence claim. See

e.g., Fernandes v. DAR Dev. Corp.,  222 N.J. 390, 403–04 (2015) ("To prevail

on a claim of negligence, a plaintiff must establish four elements: (1) that the

defendant owed a duty of care; (2) that the defendant breached that duty; (3)

actual and proximate causation; and (4) damages." (citing Townsend v. Pierre,

 221 N.J. 36, 51 (2015))). The judge explained the duty owed by premises

owners to their business invitees, such as plaintiff in this case, and noted liability

generally does not attach unless the owner had actual or constructive notice of

a dangerous condition, or had reasonable opportunity to discover the condition.

See e.g., Prioleau v. Kentucky Fried Chicken, Inc.,  223 N.J. 245, 257 (2015)

("Ordinarily, an invitee seeking to hold a business proprietor liable in negligence

'must prove, as an element of the cause of action, that the defendant had actual




2
  Defendant's motion sought oral argument if opposed, but plaintiff has failed
to supply us with any transcript if indeed argument took place before Judge
Ciarrocca.
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or constructive knowledge of the dangerous condition that caused the accident.'"

(quoting Nisivoccia v. Glass Gardens, Inc.,  175 N.J. 559, 563 (2003))).

      Judge Ciarrocca then considered whether the motion evidence relieved

plaintiff of the burden of proving actual or constructive notice through

application of the mode-of-operation rule. See id. at 258 (noting the "burden

imposed on a plaintiff . . . is substantially altered" when the mode-of-operation

rule applies because it "gives rise to a rebuttable inference that the defendant is

negligent, and obviates the need for the plaintiff to prove actual or constructive

notice" (citing Nisivoccia,  175 N.J. at 563–65; Wollerman v. Grand Union

Stores, Inc.,  47 N.J. 426, 429 (1966); Bozza v. Vornado, Inc.,  42 N.J. 355, 359–

60 (1964))).3 Relying on the Court's most recent guidance in Prioleau, the judge


3
   Model Jury Charges (Civil), 5.20F, "Duty Owned – Condition of Premises"
(rev. Mar. 2017), summarizes the necessary elements of the mode-of-operation
rule and provides:

            A proprietor of business premises that permits its
            customers to handle products and equipment in a self-
            service setting, unsupervised by employees, increases
            the risk that a dangerous condition will go undetected
            and that patrons will be injured. In self-service settings,
            patrons may also be at risk for injury from the manner
            in which the business's employees handle the business's
            products or equipment, or from the inherent quality of
            the merchandise itself.



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concluded that "even . . . viewing [d]efendant-store as self-service in nature[,]"

plaintiff "failed to establish any nexus between the liquid she alleges caused her

fall" and the supermarket's mode-of-operation. The judge entered the order we

now review.

      Before us, plaintiff contends all "inference[s] of fact" when weighed in

her favor support application of the mode-of-operation rule and relieved her of

the burden of proving defendant's actual or constructive knowledge of the

condition. We disagree and affirm substantially for the reasons expressed by

Judge Ciarrocca. We add only the following comments.




            If you find that plaintiff has proven that (1) the
            defendant's business was being operated as a self-
            service operation; (2) that the plaintiff's accident
            occurred in an area affected by the business's self-
            service operations; and (3) that there is a reasonable
            factual nexus between the defendant's self-service
            activity and the dangerous condition allegedly
            producing the plaintiff's injury, then the plaintiff is
            relieved of his/her burden of proving that the defendant
            had actual or constructive knowledge of the particular
            dangerous condition. In such circumstances, an
            inference of negligence arises that shifts the burden to
            the defendant to produce evidence that it did all that a
            reasonably prudent business would do in the light of the
            risk of injury that the self-service operation presented.



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      We review the grant of summary judgment de novo, applying the same

standard used by the trial court. Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh,  224 N.J. 189, 199 (2016). We must determine

"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." Davis v. Brickman Landscaping, Ltd.,  219 N.J. 395, 406 (2014) (quoting

Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995)). We owe no

deference to the trial court's legal analysis. The Palisades At Fort Lee Condo.

Ass'n, Inc. v. 100 Old Palisade, LLC,  230 N.J. 427, 442 (2017) (citing

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

      Although the motion record is scant, we assume that like most

supermarkets, defendant's business permitted customers to help themselves to

products that were shelved or contained on stands or in bins throughout the store.

As such, it fits the definition of self-service. See Prioleau,  223 N.J. at 262

(limiting the mode-of-operation rule to "the self-service setting, in which

customers independently handle merchandise without the assistance of

employees or may come into direct contact with product displays, shelving,

packaging, and other aspects of the facility that may present a risk"). However,


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            the rule applies only to accidents occurring in areas
            affected by the business's self-service operations,
            which may extend beyond the produce aisle of
            supermarkets and other facilities traditionally
            associated with self-service activities. The dispositive
            factor is not the label given to a particular location, but
            whether there is 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 263 (emphasis added) (citing Nisivoccia, 175
            N.J. at 563–65; Ryder v. Ocean Cty. Mall, 340 N.J.
            Super. 504, 507–09 (App. Div. 2001); Craggan v. IKEA
            USA,  332 N.J. Super. 53, 57–58, 61–62 (App. Div.
            2000)).]

Plaintiff contends that applying summary judgment standards, reasonable

inferences from the motion record evidence demonstrated such a nexus. We

disagree.

      We start by noting that nothing in the record supports an inference that

plaintiff's fall occurred near an area where unsealed liquid goods were sold.

Indeed, the picture showing plaintiff on the floor after the fall has some bins

containing dry goods nearby. There was no evidence that defendant dispensed

liquid products in open containers, such as soda, coffee, or other beverages, for

purchase anywhere in its store.

      Plaintiff seeks to provide the necessary nexus by noting the fall occurred

in close proximity to the supermarket's checkout counters and points to a


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photograph in the record showing another customer with a case of bottled water

loaded on the bottom of his or her shopping cart at checkout. However, there is

no evidence supporting an inference that those bottles were leaking, or, for that

matter, that any case of water bottles anywhere in the store, was leaking. It is

not reasonable to infer that customers loaded leaking water bottles onto their

shopping carts for purchase, or that unloading cases of sealed water bottles at

the checkout counter, if that occurred in this day where supermarkets scan prices

of heavy items remotely, resulted in actual leaks.

      Because plaintiff's fall occurred near the checkout counters, she likens this

case to the facts presented in Nisivoccia. There, the plaintiff slipped and fell on

some loose grapes near the checkout lanes of a supermarket. Nisivoccia,  175 N.J. at 561.4 There was no proof as to how the grapes, displayed in the produce

area in open-top bags that permitted spillage, came to be on the floor or how

long they were there. Ibid. The trial judge refused to give a mode-of-operation

charge and directed a verdict in favor of the defendant. Ibid. The Court reversed

our affirmance. Ibid.


4
   Here, the photo plaintiff marked as depicting where she fell shows some
distance (not estimated either by her in her deposition testimony or any other
evidence in the record) between the spot of her fall and the actual checkout
counters. This can be determined with certainty by the change in the store's
flooring between the two points.
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      After reviewing existing precedent, the Court noted

            [a] location within a store where a customer handles
            loose items during the process of selection and bagging
            from an open display obviously is a self-service area.
            A mode-of-operation charge is appropriate when loose
            items that are reasonably likely to fall to the ground
            during customer or employee handling would create a
            dangerous condition.

            [Id. at 565.]

The Court reasoned that it was equally foreseeable that droppage and spillage

would occur in the checkout area. Ibid. "'Mode of operation' here includes the

customer's necessary handling of goods when checking out, an employee's

handling of goods during checkout, and the characteristics of the goods

themselves and the way in which they are packaged." Id. at 566 (emphasis

added). Simply put, cases of bottled water are so qualitatively unlike loose

grapes in open-topped bags as to render Nisivoccia inapposite.

      Affirmed.




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