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Fleming v. Macy's East

July 30, 2008

MARY ANN FLEMING, PLAINTIFF-APPELLANT,
v.
MACY'S EAST, INC., R.H. MACY AND FEDERATED DEPARTMENT STORES, INC. D/B/A MACY'S AND ULTIMATE SERVICES, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1800-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 2, 2008

Before Judges R. B. Coleman and Lyons.

Plaintiff Mary Ann Fleming appeals from two June 8, 2007 orders granting summary judgment in favor of: (1) defendant Ultimate Services, Inc. (Ultimate); and (2) defendants Macy's East, Inc. (Macy's) and its former parent company, Federated Department Stores, Inc. (Federated).*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

On July 9, 2004, Fleming filed a Complaint and Jury Demand against Macy's and its cleaning contractor, Ultimate, alleging that on July 14, 2002, in the Macy's department store in the Quakerbridge Mall, defendants' negligence caused her to slip and fall, resulting in serious injuries to Fleming. Fleming filed an Amended Complaint on September 10, 2004. Both defendants filed timely answers denying liability and asserting cross claims against each other in the event of any adverse determination of liability. Ultimate and Macy's moved for summary judgment on April 24, 2007 and May 14, 2007, respectively. Fleming opposed both motions. On June 8, 2007, following oral argument, the court granted the motions of both movants and entered orders memorializing its decisions. On July 2, 2007, Fleming filed a Notice of Appeal.

The material facts relevant to the disposition of the matter are as follows. On July 14, 2002, Fleming and her mother-in-law were shopping in a Macy's department store located at the Quakerbridge Mall in Lawrence Township. On that date, it was hot, dry and had not rained. After completing their shopping, the two women proceeded toward the exit. As they passed the fine jewelry counter, Fleming's feet went out from under her without warning. Fleming stated that "[i]t was as if I slipped on ice." Prior to the accident, Fleming did not see what caused her to slip. After the accident, she noticed "a big puddle of what [she] thought was water, it was a clear liquid, a pretty large puddle like maybe ten inches in diameter." Fleming's mother-in-law told an employee at the store about the accident. The employee replied that she would take care of the puddle. Fleming and her mother-in-law then left the store.

Approximately one hour later, after experiencing pain, Fleming returned to the store to report the accident. The employee at the jewelry counter stated that she cleaned the spill herself. She directed Fleming to the security department, where Fleming filled out a Customer Accident Report. Fleming maintains that she showed a security guard where the accident occurred and he stated that "[Fleming] fell in a good spot because there are at least five or six cameras . . . it's definitely been recorded."

Macy's security director, Timothy Mottershead, who was familiar with Macy's spill procedures, stated at his deposition that he did not believe that the security cameras were at an angle that would have captured Fleming's fall or the liquid on the floor. Mottershead further stated that if someone had fallen in Macy's, the only items that Macy's would have on file are the accident report and photographs. Mottershead described Macy's policy for maintaining video surveillance tapes as follows: "[W]here the jewelry cameras is [sic] they record 24 hours a day. We change the tapes daily and we keep the tapes two weeks, at which time we go back and tape over those tapes."

Macy's had a housekeeping contract with Ultimate at the time of Fleming's accident. Ultimate assigned four employees to clean the store prior to opening each day. Once the store opened, a porter remained at the premises to maintain the restrooms and respond to calls for anything such as spills. Larry Solha, Ultimate's Regional Manager, described at his deposition the policy for cleaning spills:

Well, depends. The store, I'm not familiar with this store how the system works, but they carry a pager or they get a call by the loudspeaker in the store.

Well, they grab a bucket with the mop and with a wet floor sign, and they go to the spot.

Solha stated that porters do not fill out any paperwork or make a recording or report after cleaning up a spill. He also stated that Ultimate had no knowledge of this particular incident.

At the summary judgment motion, after hearing oral argument from all of the parties, the court granted the motions of Ultimate and Macy's. In its oral decision ...


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