January 18, 2011
ROSE MARIE CAPANO, PLAINTIFF-APPELLANT,
MORAN FOODS, INC., SAVE-A-LOT FOOD STORES AND SUPERVALU, INC., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-000719-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 5, 2011 - Decided: Before Judges Axelrad and Lihotz.
Plaintiff Rose Marie Capano appeals from the summary judgment dismissal of her personal injury complaint against defendants, Moran Foods, Inc., Save-A-Lot Food Stores, and Supervalu, Inc. ("supermarket defendants"). We affirm.
On August 3, 2006, plaintiff was involved in a slip and fall accident while shopping at the supermarket defendants' store known as Save-A-Lot, located in Vineland. As noted on the store's surveillance video, a male customer dropped an object on the floor, a container of cottage cheese, at 3:02:40. Plaintiff slipped and fell at 3:03:13.
Plaintiff filed suit against the supermarket defendants on July 24,
2008. Defendants filed an answer. The discovery end date was February
22, 2010. On November 19, 2009, the supermarket defendants filed a
motion for summary judgment. Plaintiff filed opposition. Following
oral argument on January 8, 2010, Judge Michael B. Fisher granted the
supermarket defendants' motion to dismiss plaintiff's complaint with
prejudice, memorialized in an order of the same date.*fn1
Plaintiff sought reconsideration, and following oral argument
on February l9, 2010, the court denied the relief, memorialized in an
order of the same date. This appeal ensued.
On appeal, plaintiff contends summary judgment was premature because there was a genuine issue of material fact as to whether or not a supermarket employee had sufficient notice of the spillage and consequent dangerous condition. Plaintiff acknowledges her fall occurred thirty-three seconds after the customer dropped the cottage cheese container and the spill was "fresh." She contends, however, the store was small and an employee, Carlos Flores, who was informed of the spill by a customer, walked towards the spill and was in close proximity as she fell. According to plaintiff, this raises an issue of fact as to whether the employee acted reasonably under the circumstances and gave her adequate warning. Plaintiff also argues the court erred in declining to permit an inference of negligence against the supermarket defendants under the theory of "dangerous mode of operation."
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. 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 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. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (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. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007). Based on our independent review of the record, if the evidence "'is so one-sided that one party must prevail as a matter of law[,]'" summary judgment is appropriate. Brill, supra, 142 N.J. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 9l L. Ed. 2d 202, 214 (l986)).
Based on our review of the record and applicable law, we are satisfied summary judgment was appropriately granted and affirm substantially for the reasons articulated by Judge Fisher at oral argument. The sequence of events leading up to plaintiff's fall are captured on the video surveillance footage. The fall occurred in the front area of the store. The footage depicts a store employee traversing the subject area without difficulty at approximately 2:55:46, about six to seven minutes before the spill. A second store employee traversed the subject area again without difficulty approximately four minutes before the spill. At 3:02:40 a male customer is shown dropping a container of cottage cheese on the floor. Plaintiff slipped on the spilled substance thirty-three seconds later. No store employee witnessed the spill. Employees Flores and Michael Robinson related in written statements that they were in different parts of the store when they were advised of the spillage; Flores was re-stocking the bread aisle and Robinson was heading to the stock room. Both immediately went to locate and investigate the spill. As Judge Fisher appropriately found after viewing the record and videotape, thirty-three seconds was not sufficient notice, as plaintiff's fall was "relatively instantaneous," "you have to afford people some reaction time to situations, even assuming they knew exactly what happened," and "no jury could possibly find that there was any negligence."
Even though the summary judgment motion was filed before the discovery end date, plaintiff makes no proffer of any evidence that would have contradicted the undisputed facts depicted on the surveillance tape. As we have stated,It is not presumed that every injurious mishap that one encounters is necessarily attributable to the negligence of another.
The factual pedestal stabilizing the logical inference of negligence must be established by some competent proof.[Overby v. Union Laundry Co., 28 N.J. Super.100, 104 (App. Div. l953), aff'd o.b., 14 N.J. 526 (l954).]
The motion judge also correctly concluded this was not a "dangerous mode of operation" case under the case law. The seminal cases involving the mode-of-operation rule, Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966) and Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003), dealt with customer slip and falls in the supermarket on produce loosely packaged for sale. The plaintiff in Wollerman, supra, fell on a string bean in the produce aisle, which was sold from open bins on a self-service basis, which the Court concluded created a likelihood that some of the vegetables would fall or be dropped to the floor. 47 N.J. at 428-29. The Court held that the mode of operation was likely to generate a risk of injury because of the carelessness of either customers or employees, imposing upon the supermarket the obligation to use reasonable measures promptly to discover and remove the hazard in order to avoid the inference it was at fault even without notice of the bean's presence on the floor. Id. at 429-30. In Nisivoccia, supra, the plaintiff slipped and fell on loose grapes as she was approaching the checkout lane. 175 N.J. at 56l. Applying Wollerman principles, the Court concluded the open, air-vented bags in which the grapes were packaged invited spillage. Id. at 565. It held the dangerous condition caused by loose, rolling grapes in the entry areas of the checkout lanes was "a foreseeable risk posed by the store's mode of operation[,]" entitling the plaintiff to an inference of negligence. Id. at 566.
Here, plaintiff's fall did not occur in the produce section or checkout line. Even if the front of the store where the fall occurred could be broadly construed to be within the area of the checkout aisle as defined in Nisivoccia, an inference of negligence was not warranted. Plaintiff did not fall on loose produce, rather, the cottage cheese was packaged by the manufacturer in a sealed container. Moreover, it was not foreseeable a customer would drop the container while walking through the store. Thus, the dangerous condition caused by the cottage cheese spillage was not a foreseeable risk posed by the supermarket's mode of operation.