On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2205-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2009
Before Judges Rodríguez and Yannotti.
Elizabeth Valentin and her husband Armindo Martinez appeal from the summary judgment dismissing their claim against respondent Toys "R" Us, Inc. (Toys "R" Us). We reverse.
The facts viewed in the light most favorable to Valentin and Martinez, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), are as follows: On July 8, 2004, Valentin slipped and fell in a Toys "R" Us store in Cherry Hill. It was a clear, typical summer day. Valentin was walking toward the aisle where car seats were located when she slipped on a jelly-like substance. In her deposition, she testified that the substance looked like the type of jelly used during a sonogram. The amount of jelly where she fell covered a two-foot area. She saw more of the substance about twenty-five feet away, and that spot was about as thick as her finger and "it [looked] as if a bucket or some kind of container had broken."
Martinez witnessed her fall. In his deposition, he said the substance on the floor was a "a little long, but it wasn't really that wide. It was narrow." Both Valentin and Martinez testified that an assistant store director immediately came to assist them, promptly cleaned up the spill, and called an ambulance. Valentin suffered leg and back injuries that persist to this day, making it difficult for her to sit for any period of time. She frequently needs pain pills.
The assistant store director called the police. Officer J. Lafferty arrived and completed a police report, stating that the assistant store director told him there were a few drops of liquid substance on the floor spread out over approximately four aisles. It looked like water, but was oily when touched. Lafferty's inspection revealed that no liquid products were sold in the area where Valentin fell.
Valentin and Martinez sued Toys "R" Us, alleging negligence and loss of consortium. At an arbitration hearing, the arbitrator found Toys "R" Us liable for two-thirds ($30,000) of a $45,000 damage award. Toys "R" Us moved for a trial de novo, pursuant to Rule 4:21A-6(c).
Toys "R" Us then moved for summary judgment. The judge granted the motion, holding that the burden-shifting line of "supermarket" slip-and-fall cases, such as Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966), did not apply because the burden-shifting mechanism has not been extended to a non-supermarket setting. He further concluded that if Valentin had indeed been injured by a Toys "R" Us product on the floor, "this is a self-service business and there should be no reason not to extend [Wollerman]."
Valentin's counsel argued that the store has a whole section that sells "baby items, formula, [and] different things along those lines." The judge said that such a fact, if correct, "does make the issue more murky" but found "the [only] common sense inference I get from [the record] is that [Toys "R" Us] . . . sells toys." The judge found that no reasonable jury could find that the liquid substance was a product sold by Toys "R" Us because there was "no reason to conclude that Toys "R" Us sells anything other than toys."
On appeal, Valentin contends the trial court erred in granting summary judgment in favor of Toys "R" Us because due to "the extensive nature of the liquid/defect . . . a jury could reasonably conclude that the defendants were negligent in maintaining the area for patrons lawfully thereupon the premises." Toys "R" Us argues that summary judgment was proper because Valentin failed to identify the identity of the substance, provided no proof that Toys "R" Us sold such a product, and produced no evidence to prove that Toys "R" Us had actual or constructive knowledge of the dangerous condition.
A business owner has a duty to provide a safe environment for its invitees. Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). This duty of care "requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe." Ibid. A business is generally not liable for injuries caused by dangerous conditions of which they were not aware. Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). Thus, ordinarily the burden is upon the plaintiff to prove "that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563. Constructive knowledge will be found "if the condition had existed for such a length of time that [the business owner] should have known of its presence." Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964)).
When the very nature of a business's operation creates the hazard, however, the "mode-of-operation rule" creates an inference of negligence and "the burden shifts to the defendant to 'negate the inference by submitting evidence of due care.'" Nisivoccia, supra, 175 N.J. at 564 (quoting Bozza, supra, 42 N.J. at 360). This inference relieves the plaintiff of proving that the defendant had actual or constructive notice of the dangerous condition and instead requires the defendant to show it did "all that a reasonably prudent man would do in light of the risk of injury [the mode of operation] entailed." Wollerman, supra, 47 N.J. at 429. If the defendant provides no explanation, the facts presented by the plaintiff should allow a jury to find "from the condition of the premises and the nature of the ...