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Barbara Cordasco and Rocco v. Walgreen Co.

October 31, 2011

BARBARA CORDASCO AND ROCCO CORDASCO, PLAINTIFFS-APPELLANTS,
v.
WALGREEN CO., WALGREEN EASTERN, DEFENDANT-RESPONDENT, AND STERLING-ROSELAND, LLC, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7187-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 18, 2011

Before Judges Payne and Simonelli.

In this slip and fall case, appellants Barbara Cordasco (plaintiff) and Rocco Cordasco*fn1 appeal from the October 29, 2010 Law Division order, which granted summary judgment to defendant Walgreen Eastern Co., Inc. (Walgreen)*fn2 and dismissed their complaint with prejudice. We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On the morning of March 12, 2008, plaintiff went to a Walgreen store in Roseland to purchase panty hose and Kleenex. She walked down an aisle toward the checkout lanes to pay for her merchandise. As she approached two self-service bins containing merchandise, which were located at the end of the aisle, she slipped and fell in front of the bins, injuring her right shoulder, neck, and left knee.

Plaintiff did not notice anything on the floor before she fell. As for what may have caused her fall, plaintiff testified at her deposition as follows:

When I finally was able to get up I did look down. There was some kind of a waxy like substance. I don't know what it was, if it was a type of crayon material. It seemed to be that kind of substance and there was, I guess, like a [skid mark] that I guess I had made from stepping on whatever that was.

However, plaintiff did not know exactly what the substance was, where it came from, how long it had been there, or whether any Walgreen employee knew about it prior to her fall.

Walgreen filed a summary judgment motion, arguing that plaintiff could not prove it breached a duty of care to her because there was no evidence Walgreen had actual or constructive notice of a dangerous condition. In opposition, plaintiff argued that she was entitled to an inference of negligence under the mode-of-operation rule because Walgreen is a self-service operation. She also argued that Walgreen is liable because it lacked in-store maintenance and inspection procedures.

Judge Cronin granted summary judgment, finding the mode-of-operation rule did not apply because plaintiff could not establish a nexus between the merchandise in the self-service bins where she fell and the substance on the floor. He rejected plaintiff's argument relating to the lack of procedures, and concluded there was no evidence Walgreen had actual or constructive notice of a dangerous condition. This appeal followed. On appeal, plaintiff raises the same arguments she raised below.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Twp. of Cinnaminson v. Bertino, 405 N.J. Super. 521, 531 (App. Div.), certif. denied, 199 N.J. 516 (2009). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp., supra, 189 N.J. at 445-46 (quoting Brill, supra, 142 N.J. at 536).

Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's ...


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