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Rubenstein v. Great Atlantic & Pacific Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2008

JACQUELINE RUBENSTEIN, PLAINTIFF-APPELLANT,
v.
THE GREAT ATLANTIC & PACIFIC COMPANY A/K/A A&P, SUMMERHILL MARKET PLACE, LLC, DEFENDANTS, AND KLEEN TECH, LLC, CYNAMIC INDUSTRIES, LLC, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-3201-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 11, 2008

Before Judges Wefing and Collester.

Plaintiff Jacqueline Rubenstein appeals from the July 10, 2007 order denying her application to vacate summary judgment entered on May 11, 2007 in favor of defendant Kleen Tech, LLC. We affirm.

On May 29, 2003, plaintiff was injured in the course of her employment at the A&P supermarket in East Brunswick. She was on break from her job as a cashier and was walking to the coffee machine at the rear of the store when she slipped and fell. Plaintiff sued A&P, Summerhill Market Place, the company who had the contract to clean the floors, and Kleen Tech, the subcontractor who performed the work. A stipulation of dismissal was entered as to A&P and Summerhill, and the case proceeded against Kleen Tech. On April 8, 2007 Kleen Tech filed a motion for summary judgment, which was granted on May 11, 2007. Plaintiff's motion for reconsideration was denied on July 10, 2007.

In her deposition plaintiff testified that she slipped and fell near the coffee machine in an area where the floor was "very glossy, very smooth, very shiny." John Costa, then general manager for Kleen Tech testified that the company performed cleaning services on a nightly basis using a machine called an auto scrubber provided by Cynamic Industries to perform the washing process and then buffed the floor with a propane-powered machine. He testified that if the floor in the area where plaintiff fell had been waxed the night before the accident, it would have been completely dry and safe to walk on when plaintiff fell the following day.

The fact of an accident does not prove negligence. Plaintiff has the burden of proving that defendant breached a duty of reasonable care and that the accident occurred as a result of defendants' negligence. Gardner v. Pawliw, 150 N.J. 359, 377 (1997); Brown v. Racquet Club of Bricktown, 95 N.J. 280 (1984). Plaintiff failed to establish a genuine issue of fact as to defendants' duty of care, breach of a duty and proximate cause for the incident so that summary judgment was properly granted. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

20080723

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