Opinion
DOCKET NO. A-0268-13T2
09-25-2014
KAREN LEBRIO, Plaintiff-Respondent, v. THE PIER SHOPS AT CAESAR'S t/a THE TAUBMAN COMPANY, Defendant-Appellant, and FEDERAL CLEANING CONTRACTORS, Defendant.
John M. Campbell argued the cause for appellant (Yost & Tretta, attorneys; Mr. Campbell and Michael F. Kernoschak, on the briefs). Eugene C. Hendrickson argued the cause for respondent (Hendrickson and Edelstein, attorneys; Mr. Hendrickson, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3980-10 John M. Campbell argued the cause for appellant (Yost & Tretta, attorneys; Mr. Campbell and Michael F. Kernoschak, on the briefs). Eugene C. Hendrickson argued the cause for respondent (Hendrickson and Edelstein, attorneys; Mr. Hendrickson, on the briefs). PER CURIAM
Central to this appeal is the mode-of-operation doctrine, which serves as a limited exception to the traditional rules of business premises liability. Under this doctrine, when a substantial risk of injury is inherent in a business operator's method of doing business, an injured plaintiff is relieved of showing actual or constructive notice of the dangerous condition that caused the injury. In Ryder v. Ocean Cnty. Mall, 340 N.J. Super. 504, 509-10 (App. Div.), certif. denied, 170 N.J. 88 (2001), we applied the doctrine where a mall permitted patrons to carry and consume food and drink in common areas. Consequently, the injured patron was not required to provide evidence of the mall's constructive notice of a spilled drink on which she allegedly slipped and fell in a common area.
In the present case, a jury awarded damages of $427,000 to plaintiff Karen Lebrio for injuries to her knee and back when she slipped and fell while walking in a common area of The Pier Shops at Caesar's in Atlantic City. After her fall, plaintiff and a mall security guard noticed a clear liquid, as well as a cup, lid, and straw on the floor nearby. Evidence at trial showed that the mall sold beverages and allowed patrons to consume them in common areas. On appeal, defendants' main argument is that the trial court misapplied the mode-of-operation doctrine, and improperly instructed the jury on it. Following Ryder, we conclude that the jury was properly instructed, and that defendants' motions for summary judgment, involuntary dismissal, and a directed verdict were properly denied.
On August 2, 2013, the trial court entered judgment against defendant, The Pier Shops, and its owner, defendant The Taubman Company, in the amount of $452,624.11, which included pre-judgment interest. We refer to The Pier Shops and Taubman collectively as defendants in this opinion.
I.
Plaintiff alleged that on September 1, 2008, she was walking in a common area on the second level of The Pier Shops when she slipped on a clear liquid and fell, sustaining injuries to her knee and back. She averred in her complaint that defendants, along with Federal Cleaning Contractors (Federal), The Pier Shops' janitorial contractor, were negligent for failing to, among other things, properly maintain and inspect the premises.
During discovery, plaintiff testified in a January 2012 deposition that after falling, she "noticed a cup with a lid and [she] was sitting in a puddle of wetness." Plaintiff identified the "wetness" as a "clear liquid," which "looked like water or it could have been Sprite soda." Plaintiff did not know how the liquid spilled on the floor, nor how long it had been there before she slipped on it. She indicated that there was a food court on the third level of The Pier Shops, and that patrons were permitted to walk around the mall carrying drinks.
Plaintiff testified at her deposition that despite the spill, there was no "Wet Floor" sign in or around the area where she fell. She admitted she did not notice any other debris on the floor because "[i]t seemed like . . . a clean place." Plaintiff did not adduce any evidence during discovery regarding defendants' cleaning activities and facility inspections, the frequency with which similar spills occurred, or the origin of such spills.
Following the close of discovery, defendants moved for summary judgment on the basis of plaintiff's failure to present any evidence that they had either actual or constructive notice of the spill. In response, relying on Ryder, plaintiff argued that the mode-of-operation doctrine relieved her of the obligation to present such evidence. Judge David F. Bauman denied defendants' motion on June 29, 2012. He found that the mode-of-operation doctrine potentially applied here because, as in Ryder, The Pier Shops did not restrict the carrying or consumption of food and drink anywhere in the common areas of the mall.
At trial, plaintiff testified that on the date of the incident she was walking on the second floor of The Pier Shops with her daughter and her boyfriend, Joshua Burns. Patrons of the mall were walking around with drinks in their hands "because above us [was] a food court." Plaintiff and Burns each testified that the area was dimly lit and had a star-effect on the ceiling.
Prior to falling, plaintiff did not see anyone drop any drinks in the area. She testified that the mall was generally a "clean place." Burns similarly indicated he did not view debris on the floor as they walked around. Nevertheless, plaintiff suddenly "went down" and was "sitting in a puddle of . . . clear liquid." Burns noted that the liquid on which plaintiff fell contained "ice and water." Both plaintiff and Burns noticed a cup and straw nearby, but did not know how long the drink had been on the floor before plaintiff slipped on it. Plaintiff could not move, at which point a security guard approached and summoned an ambulance.
Called as a witness by plaintiff, the security guard, Vincent Fiore, testified that the floor in the area where plaintiff fell was made of a "blue terrazzo, — very dark with little glitter." The overhead lighting similarly was "not bright." Upon speaking to plaintiff, Fiore confirmed that she slipped on a spill approximately twenty feet away from large fountains where patrons gathered to watch a water show. Fiore testified it "was a very busy night" and that he was patrolling the mall, which was not large by "mall standards," while supervising other officers.
Like plaintiff, Fiore noticed "the lid of a plastic cup and a straw and a small amount of clear liquid" on the floor next to her. Fiore took three pictures of the spill, none of which depicted any ice. While the second level of the mall where plaintiff fell did not have any restaurants, the level above housed several restaurants in a food court that sold drinks to go, specifically drinks in cups with straws and lids. Fiore confirmed that patrons were permitted "to walk around the mall with these cups and drinks and lids . . . from the food court." They were also allowed to enter the mall from outside with non-alcoholic drinks.
Although Fiore did not recall seeing patrons walk around the mall with drinks that evening, it was not unusual for them to do so on a busy night. Fiore testified that in addition to the security firm's six guards patrolling the mall for, among other things, spills and debris, Federal's employees were also patrolling that night, as it was Labor Day weekend and the mall was expected to stay open later. Fiore's guards were trained to remain at a spill until someone came to clean it up. To Fiore's knowledge, neither his staff nor Federal's was aware of the spill before plaintiff fell.
Defendant presented one witness on the issue of liability, Hector Perez, a Federal project manager who at the time of the incident was a supervisor for the evening cleaning shift. Perez was not on duty when plaintiff fell. He testified that ten people staffed the evening shift, and that they were split into groups of two to clean each level of the mall and its bathrooms. Federal employees patrolled the mall "looking for trash, spills, food on the floor."
Defendants presented the videotaped testimony of their expert witness, Dr. Michael Brooks, on the issue of damages.
Perez testified that the cleaning staff pull carts in the event they need to clean up a spill. The cleaning carts contain mops, dust mops, other equipment, and signs, which they set up until the area is dry. No employee who encounters a spill leaves the area until someone else arrives with a cleaning cart. The two employees assigned to each floor regularly split up so that they can crisscross the mall in order to cover all areas.
According to Perez, the crew sometimes just collects trash "[b]ecause I've seen sometimes we don't have really a lot of spills." He admitted, however, that spills occur at least a few times per week. On busier weekends, such as holidays, the cleaning crew must pay more attention to the floors than anything else. In the area where the fountain show is held, "sometimes people when they are there throw something like trash, food, or their drinks."
At the close of evidence, The Pier Shops and Federal moved for involuntary dismissal, arguing that the mode-of-operation doctrine did not apply, and that neither party had actual or constructive notice of the spill prior to plaintiff's fall. The trial judge, Joseph P. Quinn, denied the motion as to The Pier Shops, but granted it as to Federal, finding that "the maintenance company had no responsibility for, or can't be held liable under the mode of operation [doctrine] and that as to them, it would be a notice claim and there is no notice that they either caused the condition or did anything wrong here." As to The Pier Shops, the judge found:
Defense counsel had indicated at the end of plaintiff's case that he wanted to place motions on the record. The court deferred both argument and its ruling. At the close of all the evidence, the court "rolled back the clock" and heard counsel's motions on the record.
I do think this is a mode of operation case for the reasons set forth by Judge Bauman principally. And I think . . . there is sufficient evidence before me that people could come in off the boardwalk with drinks, they don't stop them. People mill around the mall, there's a food court, and that this area is both permitted and encouraged to be one in which beverages are consumed.
So as to the Pier[,] I think it is a mode of operation case.
Thereafter, defense counsel moved for a directed verdict as to The Pier Shops, arguing that even if the mode-of-operation doctrine applied so as to shift the burden to the defendants, they satisfied their burden by presenting evidence of "continuous inspections by the cleaning company [they] hired and by the security guards [they] hired." The court denied the motion, finding it was a jury question whether The Pier Shops took adequate steps to prevent slips and falls.
Over defense counsel's objection, the court instructed the jury as follows:
A plaintiff is under a duty to use such care for their own safety as an ordinarily prudent person under similar circumstances would use. A proprietor of a business premises has the duty to provide a reasonably safe place for their customers.
If you find that the premises were in a hazardous condition, whether caused by defendant's employees or by others such as customers, and if you find that the hazardous condition was likely to result from the particular manner in which the defendant's business was conducted, and if you find that the defendants failed to take reasonable measures to prevent the hazardous condition from arising or failed to take reasonable measures to discover and correct such hazardous condition, then defendant is liable to the plaintiff.
In these circumstances defendant would be liable even if the defendant and their employees did not have actual or constructive knowledge of a particular unsafe condition which caused the accident and injury. If you find that the defendant did exercise reasonable care in light of the risk of injury, reasonably to be foreseen from the particular manner in which defendant conducted their business, then defendant would not be liable to plaintiff unless you find that the hazardous condition was actually caused or created by the defendant's employees, or that the defendant had actual or constructive notice of the hazardous condition for a sufficient time to correct it and failed to do so.
The jury awarded plaintiff compensatory damages of $290,000 for pain and suffering, and $137,000 for past and future lost wages. Final judgment for plaintiff was entered in the amount of $452,624.11, which included pre-judgment interest. This appeal ensued.
II.
A.
Defendants' main contention on appeal is that the facts of this case did not warrant application of the mode-of-operation doctrine. Specifically, they argue that the motion judge erred in denying summary judgment based on the potential application of the doctrine, and that the trial judge erred in instructing the jury on it. We disagree.
To establish premises liability, plaintiff bears the burden of proving that the premises owners breached their duty of care to her. Jerista v. Murray, 185 N.J. 175, 191 (2005). Under New Jersey law, "[b]usiness owners owe to invitees a duty of reasonable or due care to provide a safe environment for doing that which is within the scope of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). This duty arises because business owners "are in the best position to control the risk of harm. Ownership or control of the premises, for example, enables a party to prevent the harm." Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510, 517 (1997)(citation omitted).
Owners of premises generally are not liable for injuries caused by defects for which they had no actual or constructive notice and no reasonable opportunity to discover. Nisivoccia, supra, 175 N.J. at 563; Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984). For that reason, "[o]rdinarily an injured plaintiff . . . must prove, as an element of the cause of action, that the defendant[s] had actual or constructive knowledge of the dangerous condition that caused the accident." Nisivoccia, supra, 175 N.J. at 563. 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).
However, actual or constructive notice of a dangerous condition need not be proved "when the shopkeeper, through acts of its agents or patrons, creates a dangerous condition." Craggan v. Ikea United States, 332 N.J. Super. 53, 61 (App. Div. 2000). An injured plaintiff is relieved of his or her burden to prove notice when, "as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business, the property's condition, or a demonstrable pattern of conduct or incidents." Nisivoccia, supra, 175 N.J. at 563. Known as the mode-of-operation doctrine, this limited exception applies
See Carroll v. New Jersey Transit, 366 N.J. Super. 380, 389 (App. Div. 2004) (mode-of-operation rule "is a very limited exception to the traditional rules of business premises liability").
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when a substantial risk of injury is inherent in a business operator's method of doing business, the plaintiff is relieved of showing actual or constructive notice of the dangerous condition. The plaintiff is entitled to an inference of negligence, shifting the burden of production to the defendant, who may avoid liability if it shows that it did all that a reasonably prudent man would do in the light of the risk of injury [the] operation entailed. Thus, [a]bsent an explanation by defendants, a jury could find from the condition of the premises and the nature of the business that defendants did not exercise due care in operating the [establishment], and that said negligent operation was the proximate cause
of [the] injuries. The ultimate burden of persuasion remains, of course, with the plaintiff.
[Id. at 564-65 (alteration in original) (citations and internal quotation marks omitted).]
"To trigger mode-of-operation liability, a plaintiff must identify facts showing a nexus between the method or manner in which the business is operated when extending products or services to the public, and the harm alleged to have caused the plaintiff's injury." Prioleau v. Kentucky Fried Chicken, Inc., 434 N.J. Super. 558, 579 (App. Div. 2014). The focus of the doctrine is "not upon the conduct of the establishment's employees," but rather "upon the business model that encourages self-service on the part of the customer, which can reasonably and foreseeably create a risk of harm to the customer." Id. at 582.
The doctrine does not apply merely because a defendant operates a specific type of business. Id. at 574. Rather, "the unifying factor in reported opinions is the negligence results from the business's method of operation, which is designed to allow patrons to directly handle merchandise or products without intervention from business employees, and entails an expectation of customer carelessness." Ibid. See, e.g., Nisivoccia, supra, 175 N.J. at 561 (slip and fall on a loose grape on floor inside a grocery store); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 428 (1966) (slip and fall on a string bean in supermarket); Bozza v. Vornado, Inc., 42 N.J. 355, 358 (1964) (slip and fall in self-service cafeteria); O'Shea v. K. Mart Corp., 304 N.J. Super. 489, 491-92 (App. Div. 1997) (golf bag fell from a display hitting a customer in the face). But cf. Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 246 (App. Div. 2013) (declining to apply doctrine where plaintiff slipped on telephone calling card discarded on sidewalk outside of defendant's convenience store, as no nexus existed since phone card had to be presented to cashier after taken from self-service rack); Prioleau, supra, 434 N.J. Super. at 578-79 (declining to apply doctrine where plaintiff slipped on a wet/greasy floor in a fast-food restaurant because "[n]o testimony showed the alleged wet/greasy floor was the result of a patron's spilled drink or dropped food" or that restaurant's floor was "strewn with debris or laden with overflowing trash").
The present case bears a close resemblance to Ryder, where, as noted, the defendant mall was found liable for personal injuries sustained by a patron who slipped on a clear liquid in a common area. Ryder, supra, 340 N.J. Super. at 508. The mall argued that "there was no testimony of poor or improper conditions, maintenance or cleanliness . . . which would lead to a general state of disorder at the Mall," and it was therefore "error to permit the jury to consider the facts without some evidence of constructive notice of the spill." Id. at 509. Rejecting that argument, we held:
There was evidence that the Mall does not restrict the carrying of, or consumption of, food and drink anywhere in the common areas of the Mall. Indeed, near the planter where Ryder fell, patrons are accustomed to sit and eat. [The mall's security director] himself had observed the planter being used in that fashion. Given that mode of operation, the Mall becomes the functional equivalent of a cafeteria. It was not uncommon to get reports of one or more spills every day and more spills are reported on weekends and during the holiday season. The Mall, therefore, can reasonably be charged with notice that food and drink spills are likely to occur and do occur anywhere and at any time in the common areas.
[Ibid.]
We first address defendants' contention that the motion judge erred in denying summary judgment. We review summary judgment decisions de novo and apply the same standard utilized by the trial court, namely, whether the evidence, when viewed in a light most favorable to the non-moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact or whether the evidence 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, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
At the summary judgment stage, Judge Bauman correctly recognized that plaintiff established two salient facts that were sufficient to warrant the potential application of the mode-of-operation doctrine. As in Ryder, plaintiff demonstrated the nature of The Pier Shops' business as a public shopping mall that included a food court, and that the mall had a policy of permitting patrons to walk around its common areas with drinks. Plaintiff's deposition testimony also demonstrated the requisite nexus to trigger application of the doctrine. Judge Bauman aptly concluded that it would not be "prudent to prevent plaintiff from seeking a mode of operation charge at this time," and appropriately denied summary judgment.
We similarly reject defendants' contention that the trial court erred in including a mode-of-operation liability charge in the jury's instructions. "In reviewing challenges to jury charges, we do not criticize small parts of the charge, but examine the charge 'as a whole' to determine whether it 'adequately conveys the law and is unlikely to confuse or mislead the jury[.]'" Prioleau, supra, 434 N.J. Super. at 573 (quoting Mogull v. CB Commercial Real Estate Grp., 162 N.J. 449, 464 (2000)). A jury charge "'should set forth an understandable and clear exposition of the issues.'" Mogull, supra, 162 N.J. at 464 (quoting Campos v. Firestone Tire and Rubber Co., 98 N.J. 198, 210 (1984)). An appellate court will only reverse a verdict "if an instruction lacks evidential support, is likely to mislead the jury, and will cause an unjust result." Prioleau, supra, 434 N.J. Super. at 573.
In addition to establishing the availability of food and drinks for sale, which defendants then allowed patrons to consume on an unrestricted basis in common areas of the mall, plaintiff established additional facts at trial that warranted the mode-of-operation instruction. In Ryder, the fall occurred near a planter where patrons regularly consumed food and drink. Here, plaintiff similarly fell in an area where the mall encouraged patrons to congregate while watching a fountain show. Perez, defendants' liability witness, testified that his staff often patrolled this fountain area because "people when they are there throw . . . trash, food or their drinks." He further stated that on busy weekends, such as holidays, the utmost attention must be paid to the floors.
We conclude that the record as a whole sufficiently established that spills regularly occur on busy holiday weekends at The Pier Shops in common areas such as those where plaintiff fell, as a result of patrons' unrestricted consumption of beverages. The jury was appropriately instructed and tasked with the duty of determining whether the doctrine applied, and whether plaintiff and defendants satisfied their requisite burdens.
Finally, defendants argue that even if the mode-of-operation doctrine properly applies, the trial court erred in denying its motions for involuntary dismissal and a directed verdict. Specifically, they contend that plaintiff failed to introduce any evidence (1) as to the frequency with which the spills occurred, (2) that the premises were in substandard condition, or (3) that defendants' maintenance efforts were unreasonable. Defendants further argue that the verdict was against the weight of the evidence.
Motions for involuntary dismissal in accordance with Rule 4:37-2(b), as well as motions for judgment occurring at the close of evidence, Rule 4:40-1, or after the verdict, Rule 4:40-2(b), are governed by a similar standard: "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . ." Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). Reviewing courts apply the same standard. Barber v. ShopRite of Englewood & Assocs., 406 N.J. Super. 32, 52 (App. Div.), certif. denied, 200 N.J. 210 (2009).
Here, the jury was free to weigh the evidence and to decide whether defendants' maintenance efforts were reasonable. See, e.g., Williamson v. Waldman, 150 N.J. 232, 239 (1997) (the reasonableness of a condition presents a jury question); Ryder, supra, 340 N.J. Super. at 510 ("[i]t then is a classic jury question whether the maintenance and security coverage plans broke down"). Defendants' motions were properly denied.
As to defendants' argument that the resulting verdict was against the weight of the evidence, because jury verdicts are entitled to considerable deference, they "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). Applying those standards here, we discern no basis to disturb the jury's verdict.
B.
Defendants next argue that the trial court erred in submitting the issue of causation between plaintiff's fall and her back injury to the jury in light of the allegedly speculative testimony of her medical expert, Dr. Dennis. Defendants' argument is premised on the alleged inconsistency between Dr. Dennis' opinion that plaintiff experienced back pain several months after her fall because of disc material oozing out over time, and his testimony that plaintiff reported having back pain immediately after the fall.
Having reviewed the record, we conclude that it was well within the jury's function to hear Dr. Dennis' opinion and to weigh its value, taking into consideration any inconsistencies defendant elicited on cross-examination. See Lanzet v. Greenberg, 126 N.J. 168, 186 (1991) (internal quotation marks omitted) (recognizing that after competency of expert witness has been established, "the jury is to determine the credibility, weight and probative value of the expert's testimony"). Thus, having admitted the opinion, the trial judge did not err in submitting the issue of causation to the jury, nor do we perceive any basis to upset the jury's ultimate determination.
To the extent we do not specifically address defendants' remaining arguments, we conclude that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION