March 31, 2008
VIRGINIA SCHWING-DZUIRA, PLAINTIFF-APPELLANT,
KOHL'S DEPARTMENT STORES, INC.; KOHL'S STORE #294, INC., DEFENDANTS-RESPONDENTS, AND HELMSMAN MANAGEMENT SERVICES, L.L.C., DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1430-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 23, 2008
Before Judges Yannotti and LeWinn.
Plaintiff, Virginia Schwing-Dzuira, appeals from an order of the trial court granting summary judgment to defendants, Kohl's Department Stores, Inc. and Kohl's Store #294, Inc., and dismissing her personal injury complaint. Having thoroughly reviewed the record, we affirm substantially for the reasons stated by Judge Paul Innes in his bench decision of January 19, 2007.
We briefly summarize the pertinent facts. Plaintiff was shopping at Kohl's Department Store in Princeton, when she slipped on some debris on an aisle floor and fell, injuring her right knee. At her deposition, plaintiff described the debris as "a pile of crumbs" that she thought "may have been [crushed] Cheerios." She could not describe the size of the pile. She got up immediately after falling and spoke to an employee who called the assistant manager, Barbara Lee Barbato, who filled out a report with her. As she was leaving the store, plaintiff noticed the crumbs still had not been cleaned up and, at this point, she learned the crumbs were "probably" potato chips.
Ms. Barbato testified, in deposition, that it was her responsibility to patrol the store during business hours, in order to ensure all was running smoothly. She did not recall the last time she patrolled the area where plaintiff fell, but estimated it would have been about one-half hour earlier. The area in question was near the cashiers' lanes, and Ms. Barbato testified the cashiers were responsible to make sure the floors were safe for customers to walk on. Ms. Barbato was not able to say how long the crumbs on which plaintiff slipped had been on the floor.
In granting defendants' summary judgment motion, the trial judge found that plaintiff had failed to meet her burden of proof with respect to the issue of notice. Specifically, Judge Innes found:
Plaintiff here has no evidence to show the amount of time the condition was present. [S]he can only show that it, in fact, existed. The condition may well have occurred long enough to provide notice but this Court has insufficient proofs to make that or any other conclusion with regard to the time factor.
Plaintiff attempts to argue that a case for basic negligence exists and attempts to have the Court infer notice. Plaintiff points to the lack of warnings and/or signs, the possibility of the janitor not being on site, the alleged insufficiency of training and the forgetfulness of employees. Unfortunately, plaintiff ignores the fact that notice must first be proven before this Court can address whether the measures taken by the store were insufficient. . . .
Plaintiff has yet to show that the material had laid untouched for a significant period of time. The Court cannot infer such a fact without more evidence. No inferences can be made in favor of the plaintiff as to notice on the part of the defendant.
On appeal, plaintiff argues:
The Trial Court improperly granted summary judgment where there existed material facts related to constructive notice of the dangerous condition of its property to defendant Kohl's, and instead applied only an actual notice standard foreclosing the plaintiff [sic] the possibility of submitting her case to a jury.
In his decision, the trial judge used the term "notice" without specifying "actual" or "constructive" notice. However, the judge clearly applied a "constructive notice" standard to his analysis of the proofs. The concept of "constructive notice" has been defined as follows:
that the particular condition existed for such period of time that an owner/occupier of the premises in the exercise of reasonable care should have discovered its existence. That is to say, constructive notice means that the person having a duty of care to another is deemed to have notice of such unsafe conditions, which exist for such period of time that a person of reasonable diligence would have discovered them.
[Model Jury Charge (Civil), 5.20F, "Active and Constructive Notice Defined" (2003).]
See Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957) (defining "constructive notice" as "the existence of a condition for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.")
In rendering his decision, the trial judge defined "notice" in conformance with this definition. Thus, contrary to plaintiff's argument, the judge did not "appl[y] only an actual notice standard."
The mere existence of a dangerous condition does not, in and of itself, establish constructive notice of it. Sims v. City of Newark, 244 N.J. Super. 32, 42 (App. Div. 1990). "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." Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984).
Plaintiff cites Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003), in support of her contention that she "can establish notice of the condition by setting forth proof of actual or constructive notice." However, as Judge Innes stated, in distinguishing Nisivoccia from plaintiff's case:
This is unlike the situation found in Nisivoccia v. Glass Gardens, Inc. . . . where a woman slipped on a grape in a supermarket checkout line. The alleged danger here had no connection to the usual business of Kohl's Department Store. Therefore, the mode of operation doctrine . . . is not applicable to the current situation.
We agree with this analysis.
In sum, plaintiff failed to meet her burden of establishing constructive notice on defendants' part. Under the circumstances, we conclude that no genuine issue of material fact existed and defendants were entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
© 1992-2008 VersusLaw Inc.