On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-174-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Parrillo and Lihotz.
In this slip and fall case, plaintiff Leonard Furst, Jr. appeals from the summary judgment dismissal of his negligence complaint against defendants, Lucent, Inc. and Mowatt, Inc.*fn1 We affirm.
The facts viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), are as follows. Plaintiff was employed by Verizon, Inc. (Verizon) as a technician. On August 17, 2005, he was on the third floor of Verizon's Morristown office, working the 4:00 p.m. to midnight shift. At around 11:30 p.m., while walking toward his desk, plaintiff put his right foot forward and it slid, twisting to the left. Apparently, his foot became lodged in a four-inch space between his desk and the floor. His right ankle was injured and required surgery.
Although he could not see any type of residue on the sheet linoleum flooring, plaintiff believed he slipped on an invisible slick substance, which he further believed, from past experience, had come from cable wiring installed by Lucent. Although plaintiff inspected the area after his fall, he could not identify any slippery substance.
Lucent was under contract from Verizon to perform on-site work at its Morristown office. According to Sandy Horan, an operations supervisor who worked for Lucent in 2005, Lucent was not on-site at Verizon's Morristown office performing a cable installation on August 17, 2005. In fact, the last time before the accident that Lucent had installed cable at that location was at the end of July 2005. The next delivery and installation of cable at the premises was not until August 18, 2005, one day after plaintiff's accident. Moreover, the cable installed by Lucent was not packed in any type of packing material, either to protect it or ease its installation. The cable had no lubricant or preservative of any kind on it.
Walter Schuckmann worked for Lucent from 1965 to 2008. In the summer, 2005, Schuckmann installed communications equipment at Verizon's Morristown office. He confirmed Horan's testimony that the cable he installed was not coated with any lubricant or other waxy substance. Moreover, he never experienced any invisible slippery substance on the floors of Verizon's Morristown office. According to Schuckmann, although he laid the cable out when installing it on the second floor, there was never a need to place it down on the third floor because he ran the wiring "[u]p and into its location" on that floor. Thus, the cable installed by Lucent never came into contact with the linoleum flooring on the third floor.
Verizon contracted with Mowatt to perform cleaning and janitorial services at its Morristown building. According to that contract, Mowatt was not allowed to wet mop the floors in equipment areas such as the third floor, and instead was only permitted to dry mop those areas housing electrical equipment. The contract also required Mowatt to maintain a porter presence at the Verizon building from 7:00 a.m. to 5:00 p.m. Mowatt's on-site representative, Maria Arias, had not seen nor was ever notified of any slippery substance on the third floor.
On January 11, 2007, plaintiff sued Lucent and Mowatt alleging negligence. Defendants answered. During the ensuing discovery, plaintiff requested a ten-inch sample of the cable installed on the third floor in the summer, 2005. In response to the court's May 27, 2008 order to produce, on July 1, 2008, Lucent advised that it could not provide an exemplar sample, inasmuch as the cable, manufactured by another company specifically for the Verizon job, was pre-cut and installed in full. Lucent claimed there was no excess cable to produce as a sample. Plaintiff's renewed motion to produce was denied without prejudice on July 10, 2008. In the meantime, plaintiff's counsel informed Lucent that some two years after the incident, plaintiff had obtained a piece of cable that had been discarded and recovered from a trash disposal location at the Morristown facility. The cable produced by plaintiff was examined by Schuckmann, who maintained that it was not the type of cable installed by Lucent at the time of plaintiff's injury.
On August 29, 2008, all parties conducted a site inspection at the Verizon location.
Following discovery, both defendants moved for summary judgment. After hearing argument, the judge granted the motion, dismissing plaintiff's complaint. The judge reasoned:
The fact is that negligence can never be presumed, except in a res ipsa situation. This is not a ...