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Byrd v. Salem Community College

July 14, 2009

DORIS BYRD AND HAYDEN BYRD, H/W, PLAINTIFFS-APPELLANTS,
v.
SALEM COMMUNITY COLLEGE, AND/OR NEW JERSEY COMMUNITY COLLEGE AND/OR SALEM COMMUNITY COLLEGE FOUNDATION, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Salem County, L-172-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 9, 2009

Before Judges Axelrad and Winkelstein.

In this slip and fall personal injury case, plaintiff appeals from an August 8, 2008, order barring her expert from testifying regarding the existence of a foreign substance on the floor where plaintiff fell, and from an October 3, 2008 order granting defendants summary judgment. We affirm.

Plaintiff fell and sustained injuries on August 19, 2005, while catering the International Flameworking Conference, an event held at Davidow Hall at the Salem County College (the College). She had been hired by the College Foundation (the Foundation), a nonprofit corporation, which sponsored the event. Plaintiff fell in a restroom on the College campus in the building where the conference was held. At her deposition, she testified that she did not know how she fell. She said she walked into the ladies' room, used the toilet, and as she was walking to the sink to wash her hands, she fell. She did not remember falling, "all [she knew] was [she] was on the floor."

While she was on the floor, other people entered the restroom, and walked around the floor "testing it" with their feet. Plaintiff heard them say that the bathroom floor was slippery in some places, and not slippery in others; that "something" was on the floor; they did not, however, describe what the "something" was and she did not see anything on the floor, and no substance was on her clothing from the floor. Although she heard someone mention that a can of Pledge was on the sink, she did not see it.

Amy Friant-Mumink, one of plaintiff's employees, had been in the same restroom approximately three minutes before plaintiff fell, and as she was walking out, she lost her footing. She believed that the floor was slippery in front of the sinks. She did not tell anyone that the floor was slippery.

According to Teri Harrison, a College employee who went to the restroom after plaintiff fell, Dr. Contini, the College President, rubbed his foot on a part of the floor and said it felt "different" from other parts of the floor. Harrison, who was on the floor assisting plaintiff, testified that she rubbed the floor with her hand, and it was like a different texture in the tile in front of the sink versus the rest of the floor. . . . it was not wet, it was not slippery. It was just the texture of the tile felt smoother than the rest of the tile floor. As if like your tile, grouted tile floor has like a sand kind of roughness texture to it and the other part of it felt smoother, not necessarily slippery.

Harrison completed an incident report in which she stated that the area in front of the sinks was not wet, but "seemed to feel slippery in comparison to the rest of the floor."

One or more College employees saw a can of Pledge, or another type of polish, on the counter in the bathroom. Harrison testified that "it wasn't really Pledge, I don't think, but it was some polish." When she was questioned whether a can of polish would have been in the ladies' room, she testified that she would not have been surprised to hear that someone had washed a piece of glass in the ladies' room; however, when she looked at the floor, and when she felt the floor, she could not see or feel any foreign substance in the area where plaintiff fell. No one associated with the conference had ever asked her where to wash a piece of glass.

Dennis Breining, a College employee, testified that during his seven-year association with the conference, no one had ever asked him where they could find water to rinse off, polish, or clean their glass. Consequently, he believed that there was no need for a warning or prohibition against sponsors cleaning or washing the glass in the ladies' or men's room. He had never seen any participant clean or polish glassware with a polishing agent. The only polishing he had ever observed was when someone simply wiped a glass with a cloth. In fact, he testified that Pledge would not make glass look shiny, but rather would make it look oily.

During his deposition, Bruce Watkins, the manager of campus operations, testified that for the eleven years he had been with the College, he had never seen anyone cleaning or polishing glass. When asked where he would direct someone who needed to wet glass, he responded: "I honestly wouldn't direct them anywhere. We do not clean glass at the facility." A College janitor, Matthew Roman, confirmed that no conference participant had ever asked to borrow Pledge or a polishing agent or other cleaning product during the conference. William Clark, the director of public relations and an executive assistant to the president of the College, also testified that no one ever asked for a place to clean glass, nor did he ever recall seeing any person wipe down glass at a conference.

The Foundation had sponsored the International Flameworking Conference for several years. The Foundation primarily consists of a Board of Directors who are members of the community. All Foundation employees are also employees of the College, which pays the employees for their work for the Foundation. Two of the College employees, Mildred McAllister and Linda Smith, are also employees of the Foundation.

During the conference, the Foundation was not responsible for maintenance or upkeep of the physical structures at the College; the College staff was responsible for overseeing and setting up the facilities for the event. Watkins's department was responsible for cleaning and maintaining the campus buildings, including the restroom where plaintiff fell.

Harrison planned the day-to-day logistics of the conference. The College received the glass for the conference before the conference date. Mary Rodgers, a College employee, placed the glass in display cases. By the day plaintiff fell, the glass had all been delivered and placed in the cases. According to Harrison, Rodgers would have been the only person handling the glass pieces; thus, if there was any ...


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