September 15, 2009
AMY FERRARA AND MICHAEL FERRARA, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
CONTINENTAL AIRLINES, INC., DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND LISBON CLEANING, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2628-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 5, 2009
Before Judges Rodríguez and LeWinn.
Amy Ferrara and Michael Ferrara (plaintiffs) appeal from the July 18, 2008 summary judgment, dismissing their claim against Continental Airlines, Inc. (Continental) and Lisbon Cleaning, Inc. (Lisbon). We reverse as to Lisbon and affirm as to Continental.
These are the salient facts. On April 2, 2005, Amy Ferrara slipped and fell in a lavatory at Terminal C in Newark International Airport. Terminal C is leased by Continental. Lisbon is the contractor that provides cleaning services for Terminal C. According to Amy, she slipped after exiting a toilet stall while walking toward the sinks. There was no one in the bathroom at the time. The floor was not wet on her way to the toilet. The stalls were separated from the sinks by a wall. Amy could not see or hear anything that was occurring in the sinks area during the five minutes that she was in the stall. She walked the same path on her way back from the stalls. She slipped on a wet floor, falling on her hands and knees. The water on the floor was slimy. There was no puddle.
While on the floor, Amy noticed that the bathroom floor smelled as if it had been just cleaned.
Amy was helped off the floor by another patron. She then saw a cleaning woman come out of a utility closet holding a mop and a caution sign. The cleaning woman was standing next to a bucket. It is undisputed that the cleaning woman was a Lisbon employee.
Plaintiffs sued Continental and Lisbon, alleging that Amy sustained injuries as a result of their negligence. Lisbon and Continental answered the complaint. Amy was deposed. Thereafter, Lisbon and Continental moved for summary judgment. Plaintiffs opposed the motions. The judge granted the motions, finding that there was no proof of what caused Amy's fall.
Plaintiffs appeal contending that: (1) summary judgment should not have been granted to Lisbon or Continental because credible evidence exists which shows defendants had prior knowledge of the dangerous condition and, in fact, created the dangerous condition; and (2) it is not necessary for plaintiff to show actual notice or constructive notice to Lisbon or Continental of a dangerous condition to show defendant breached a duty of care.
The owner of the premises generally is not liable for injuries caused by defects for which it had no actual or constructive notice and no reasonable opportunity to discover. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984); Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003).
For that reason, "[o]rdinarily an injured plaintiff... must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563.
Moreover, the mere showing of an incident causing the injury alleged is insufficient to establish negligence on the part of the defendant. Vander Groef v. Great Atlantic and Pacific Tea Co., 32 N.J. Super. 365, 370 (App. Div. 1954); Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139 (1951). The burden of proving negligence is on the plaintiff. Vander Groef, supra, 32 N.J. Super. at 370. Negligence must be shown by circumstances which would allow a legitimate inference that the defendant failed to exercise due care. Ibid. "It is a substantial right of the defendant that the plaintiff be required to bear this burden." Ibid. Moreover, "[a]n inference can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess." Long v. Landy, 35 N.J. 44, 54 (1961) (citing Rivera v. Columbus Cadet Corps of America, 59 N.J. Super. 445 (App. Div. 1960), certif. denied, 32 N.J. 349 (1960).
Here, plaintiffs have not presented any evidence, direct or circumstantial, that a dangerous condition was created by Continental or that such a condition existed for a sufficient length of time that Continental had constructive notice of same. That is not surprising because Continental had agreed with Lisbon that the latter would provide janitorial maintenance and inspection services throughout Terminal C. Pursuant to that agreement, Lisbon was required to inspect, clean, and police Terminal C lavatories. It was Lisbon's responsibility to monitor the conditions of the lavatory, including the floors. Therefore, we agree with the judge with respect to Continental that plaintiffs have not presented sufficient evidence to establish actual or constructive notice of a dangerous condition. In short, plaintiffs have not shown a breach of duty by Continental.
However, as to Lisbon, we disagree with the judge. From the evidence presented on the motion, a jury could conclude that the lavatory floor was not merely wet, but that it had recently been mopped with a slimy water solution that smelled of cleanser. The presence of a cleaning woman, mop in hand and carrying a warning sign, buttresses the inference that she had recently mopped the floor. In short, plaintiffs presented sufficient circumstantial evidence to defeat summary judgment to Lisbon. See Brown, supra, 95 N.J. at 291.
The judgment in favor of Continental is affirmed; the judgment in favor of Lisbon is reversed and the matter remanded for trial.
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