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DeLeon v. Glimcher Realty Trust

August 26, 2010

MICHAEL DELEON AND DAMARYS DELEON, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
GLIMCHER REALTY TRUST,*FN1 AND TRIDON CLEANING CORPORATION,*FN2 DEFENDANTS, AND OFF 5TH SAKS FIFTH AVENUE OUTLET, DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND ONESOURCE MANAGEMENT, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3727-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2009

Before Judges Fisher and Sapp-Peterson.

This appeal and cross-appeal arise from orders granting summary judgment in favor of defendants, Off 5th Saks Fifth Avenue Outlet (Saks) and OneSource Management, Inc. (OneSource), stemming from a slip and fall from which plaintiff,*fn3 Michael DeLeon, a Saks employee, sustained injuries. We affirm both orders, but as to Saks, for a different reason.

Plaintiff worked for Saks in its Elizabeth store as a loss prevention associate (also known as a store detective). He slipped and fell on the floor in the men's restroom, sustaining injuries on December 4, 2004, around 4:00 p.m. One month earlier, he had sustained another work-related injury, a sprained left ankle, as a result of chasing a shoplifter. He returned to work on December 3, and, at that time, was walking with a cane and still receiving physical therapy for this injury. Prior to his fall, DeLeon had not observed any water on the floor, but did observe water at the time he slipped.

Defendant, OneSource, contracted with Saks to provide cleaning services to Saks' stores nationwide, including the Elizabeth store. Under its contractual obligation, OneSource provided cleaning services to the Elizabeth store daily. It typically cleaned the restrooms twice a day, before the store opened and around 5:30 p.m. No evidence was disclosed during discovery that OneSource was aware of any water problem in the bathroom on the day of plaintiff's slip and fall. Nor was there any evidence in the record that prior to plaintiff's fall, there had been a recurring water problem in the restroom. Additionally, discovery revealed no other general complaints about the cleanliness or maintenance of the restrooms prior to plaintiff's slip and fall.

Following the accident, DeLeon filed a workers' compensation claim seeking the recovery of benefits stemming from this work-related accident and subsequently received benefits. Saks Incorporated, Saks' parent company, the named insured under an insurance policy covering Saks employees at the Elizabeth store, answered the petition. DeLeon commenced receiving workers' compensation benefits.

In seeking summary judgment, OneSource argued that it breached no duty of care owed to plaintiff. Saks maintained that it was entitled to summary judgment based upon the exclusivity provision contained in the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -128, and also because it breached no duty of care owed to plaintiff. In granting summary judgment, the motion judge agreed that it was undisputed that OneSource breached no duty of care owed to plaintiff. As to Saks, the judge concluded that there was a factual dispute as to whether plaintiff was a "special employee" for purposes of overcoming the workers' compensation exclusivity bar but that summary judgment was nonetheless appropriate because Saks breached no duty of care to plaintiff as a matter of law. The present appeal followed.

On appeal, plaintiffs urge the court erred in granting summary judgment to both Saks and OneSource. First addressing Saks, plaintiffs contend the court erred when it found that the "mode of operation"*fn4 rule did not apply and that the restroom was not "inherently dangerous." As to OneSource, plaintiffs contend that the language of its contract with Saks was much broader than construed by the court, which concluded that OneSource "was to go in and do whatever they're supposed to do pursuant to the contract[,] which was evidently to clean it on a periodic basis; periodic, unspecified basis. There was no duty to inspect." In its cross-appeal, Saks contends the motion judge erred in finding that there were disputed factual issues relative to whether the provisions of the Act operated as plaintiff's exclusive remedy for claims against it.

When reviewing a grant of summary judgment, we employ the same legal standards used by the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atlantic Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party and analyze whether the moving party was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523, 529 (1995). We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek, supra, 399 N.J. Super. at 180; Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

We first dispense with Saks' cross-appeal. Saks argues that the motion judge erred when it concluded factual issues precluded the grant of summary judgment based upon the exclusivity provision of the Act. We agree.

N.J.S.A. 34:15-8 provides:

If an injury or death is compensable under this [Act], a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as ...


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