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Osborn v. Walgreens Pharmacy

Superior Court of New Jersey, Appellate Division

October 16, 2013

LOIS PATRICIA OSBORN, Plaintiff-Appellant,
WALGREENS PHARMACY, Defendant-Respondent.


Argued October 8, 2013

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-4113-10.

Theodore B. Weiss argued the cause for appellant.

George A. Kelman argued the cause for respondent (Coughlin Duffy, attorneys; Mr. Kelman, of counsel and on the brief).

Before Judges Fisher and Koblitz.


Plaintiff commenced this suit, alleging she suffered personal injuries when, on December 11, 2008, she fell in the parking lot of defendant's Willingboro store. Once the period of discovery ended, defendant successfully moved for summary judgment, and plaintiff now appeals, arguing the motion judge mistakenly concluded there was no evidence of constructive notice and that discovery was incomplete. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

The mere occurrence of an incident causing an injury is not alone sufficient to impose liability. Long v. Landy, 35 N.J. 44, 54 (1961). Our Supreme Court has summarized the principles applicable to a proprietor's liability in the following way:

"The proprietor of premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation." This duty to maintain safe premises and protect invitees includes an affirmative obligation upon the proprietor to inspect the premises "to discover their actual condition and any latent defects, " as well as "possible dangerous conditions of which he does not know."
A propriety is generally not liable for injuries caused by defects of which he had no actual or implied knowledge or notice, and no reasonable opportunity to discover. Whether a reasonable opportunity to discover a defect existed will depend on both the character and the duration of the defect.
[Brown v. Racquet Club of Bricktown, 95 N.J. 280, 290-91 (1984) (internal citations omitted); see also Bauer v. Nesbitt, 198 N.J. 601, 615 (2009); Jerista v. Murray, 185 N.J. 175, 191 (2005); Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563-64 (2003); Butler v. Acme Markets, Inc., 89 N.J. 270, 275 (1982).]

Here, in opposing defendant's motion for summary judgment, plaintiff was unable to present a prima facie case of liability. At her deposition, plaintiff testified it had "rain[ed] a little" on the day in question and, at the time of her fall, there was "a little drizzle." She described getting out of her car and "then boom" she was "on the ground in excruciating pain." When asked what caused her to fall, plaintiff testified "I can't say exactly because I'm not quite sure what it was, " and "I just know there was something that must have been slippery." Upon further probing, plaintiff could only repeat that she "wasn't sure what it was that [she] had fallen on or caused [her] to fall." In addition, plaintiff could not describe with any precision where in the parking lot she fell.[1]

As a result, there is no evidence upon which the trier of fact could conclude the premises were not in a reasonably safe condition.

In addition, even if it could be assumed there was a defect in the parking lot, there is no evidence that defendant had actual or constructive knowledge of it prior to plaintiff's fall. In response to this legal requirement, plaintiff refers only to the reporting of her fall to defendant. Obviously, defendant's receipt of notice of plaintiff's fall is not germane to whether defendant had actual or constructive notice of the property condition in time to address the alleged defective condition prior to plaintiff's fall.

We lastly observe that plaintiff's claim that summary judgment was premature is without merit, since the discovery period expired before the summary judgment motion was filed.


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