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Arroyo v. Durling Realty, LLC

Superior Court of New Jersey, Appellate Division

October 23, 2013

JACQUELIN ARROYO, Plaintiff-Appellant,
v.
DURLING REALTY, LLC, Defendant-Respondent.

Submitted October 8, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2282-11.

Zavodnick, Perlmutter & Boccia, L.L.C., attorneys for appellant (Christopher S. Byrnes, on the brief).

Suzanne D. Delvecchio, attorney for respondent.

Before Judges Messano, Sabatino and Hayden.

OPINION

SABATINO, J.A.D.

In this personal injury case, plaintiff Jacquelin Arroyo appeals the trial court's grant of summary judgment to defendant, Durling Realty, LLC. We affirm.

Defendant owns and operates a Quick Chek convenience store in Wantage. On May 16, 2010, plaintiff and her friend, who had been camping nearby, went inside the store. It was around 10:00 p.m., although the area outside the store was brightly lit. Plaintiff and her friend purchased coffee and a few other items, and then left the store.

According to plaintiff, after she left the store, she slipped on a discarded telephone calling card, which was on the sidewalk near the store entrance. Plaintiff injured her knee as a result of her fall, requiring medical treatment.

Plaintiff claims in this negligence action that the presence of the plastic card on the sidewalk created an unreasonably dangerous condition. In support of her theory, plaintiff notes that the phone cards are displayed on racks near the store's cash register and the exit doors. Given that proximity, plaintiff argues, in essence, that defendant should have foreseen that the purchased cards would be taken out of the store, immediately used, and discarded on the sidewalk.

Defendant's store manager stated in his deposition that the front of the store is swept for cigarette butts and other miscellaneous debris ten to fifteen times daily, and that the entire front sidewalk and parking lot are swept twice each day. In addition, he indicated that at the end of each shift, the employees are required to sweep the area outside and make sure that it is clean. The area is also vacuumed every two or three days. On the night in question, a shift ended at 10:00 p.m., shortly before plaintiff and her friend arrived. There is no proof that any store employee was aware of the presence of the card on the sidewalk in advance of plaintiff's mishap.

Plaintiff retained as a liability expert a construction consultant, who opined that the store should have had handy trash cans at the exit and also a regular sweeping schedule. In addition, plaintiff argues that the store is liable under a mode-of-operation theory.

After considering these arguments, the motion judge, Lourdes I. Santiago, J.S.C., granted defendant summary judgment and dismissed the complaint. The judge rejected plaintiff's theories of liability. In her oral opinion, the judge concluded that plaintiff had failed to "present evidence that the phone card that caused the slip and fall was present for an unreasonable amount of time, " and that therefore "no genuine issue of material fact [existed such that] a rational jury could find for the plaintiff." The judge also declined to extend the principles of mode-of-operation liability to this factual setting.

Rule 4:46-2(c) directs that 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 . . . as a matter of law." The appropriate inquiry must determine "'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.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, 214 (1986)). The court must review the evidence presented "in the light most favorable to the non-moving party." Id . at 540. On appeal, we review summary judgment orders de novo, utilizing the same ...


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