Opinion
DOCKET NO. A-5358-14T1
01-30-2017
JOSEPH PASTERKIEWICZ, Plaintiff-Appellant, v. MARINA BUFFET, INC. t/a MARINA BUFFET and KING T. GEORGE, LLC, Defendants-Respondents.
John Motta, attorney for appellant. Law Offices of William E. Staehle, attorneys for respondents (James H. Rohlfing, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Ostrer and Leone. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2062-13. John Motta, attorney for appellant. Law Offices of William E. Staehle, attorneys for respondents (James H. Rohlfing, on the brief). PER CURIAM
Plaintiff Joseph Pasterkiewicz appeals from the trial court's summary judgment dismissal of his slip-and-fall complaint. Defendant slipped and fell on the floor of a buffet restaurant operated by defendant Marina Buffet, Inc. It was located on property owned by defendant King T. Group, L.L.C. Having considered plaintiff's arguments in light of the record and applicable principles of law, we affirm.
Although plaintiff identified the property owner as "King T. George, L.L.C.," defendants refer to the party as "King T. Group, L.L.C."
We discern the following facts from the record, viewed in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff visited the Marina Buffet restaurant accompanied by two friends. Although their table was located in a carpeted area, the flooring around the four food islands consisted of a hard surface. Plaintiff said it was "brightly shiny, like marble or shiny tile[,]" and was "highly polished." One of the restaurant's owners, Ling Wang, testified the floor was "some kind of ceramic" tile. It was installed as part of recent renovations.
After serving himself a second helping of food, plaintiff headed toward his table. Upon taking two steps, his left foot slipped out from under him. He fell on his left buttock and side, and suffered a serious injury. Plaintiff was wearing rubber-soled boat shoes. He contended he intentionally walked slowly on the tile floor, because of how polished it was.
Plaintiff did not allege that any food or liquid on the floor caused him to lose his footing. He testified he did not notice any substance on the floor when he served himself the first time, or before he fell. Once on the floor, after his fall, he did not notice anything on the floor other than what spilled off his plate.
In his complaint, plaintiff alleged defendants negligently maintained a dangerous condition, the slippery floor. He also contended, based on defendants' mode of operation, he was not required to prove defendants had actual or constructive notice of the dangerous condition. Rather, defendants' negligence should be inferred, and defendants should bear the burden to establish they acted reasonably to prevent the dangerous condition.
After a period of discovery, defendants sought summary judgment. They contended plaintiff failed to establish that defendants breached a duty of care, or that any of their actions proximately caused his injuries. Defendants noted plaintiff failed to present evidence that any substance on the floor caused him to fall, nor did he present any expert opinion that the floor itself was dangerous.
Plaintiff's counsel conceded his client could not identify a specific substance that caused his fall, and he did not know whether he slipped on any substance at all. However, counsel invoked both the mode of operation and res ipsa loquitur doctrines to support plaintiff's cause of action. He contended one could infer there was a substance on the floor. He also argued the floor was dangerous because it was "intrinsically slippery . . . ."
In granting summary judgment, the trial court noted a person can fall without another's negligence. Absent an expert report, there was insufficient evidence to conclude the floor was inherently dangerous. Also, there was no evidence that plaintiff slipped on a substance, even if plaintiff could not identify it. The court also found the mode of operation and res ipsa loquitur doctrines did not apply.
On appeal, the parties essentially renew the arguments they presented to the trial court.
We review the trial court's grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. "[W]hen the evidence is so one- sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment." Ibid. (internal quotation marks and citation omitted).
We are guided by fundamental principles. A plaintiff ordinarily bears the burden to prove negligence, and that is never presumed. See Khan v. Singh, 200 N.J. 82, 91 (2009). A plaintiff must prove four elements: a duty of care, a breach of the duty, proximate cause, and actual damages. See Townsend v. Pierre, 221 N.J. 36, 51 (2015). These elements must be established "by some competent proof." Ibid. (internal quotation marks and citation omitted).
Defendants unquestionably had a duty to maintain safe premises for their customers, including discovering and eliminating dangerous conditions. See Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003); see also Overby v. Union Laundry Co., 28 N.J. Super. 100, 107 (App. Div. 1953), aff'd o.b., 14 N.J. 526 (1954). Yet, plaintiff failed to present competent proof that defendants breached this duty.
Turning first to plaintiff's contention about the floor itself, there simply is no evidence that defendants breached their duty by maintaining an inherently dangerous, slippery floor. Plaintiff presented no expert testimony that the floor was exceptionally slippery, or that it violated some standard that a reasonably prudent person would meet. That plaintiff slipped and fell is not enough. We reached the same conclusion in Overby, supra.
The plaintiff in Overby fell on a slippery floor, which she contended was waxed negligently. 28 N.J. Super. at 103. We held "the mere circumstance that a person falls upon a floor that admittedly has been waxed does not warrant any inference that the mishap was caused by the proprietor's negligence." Id. at 105. The plaintiff was obliged to establish that the way the floor was maintained departed from normal or generally accepted standards as to create a dangerous condition. See id. at 105-06. The Overby plaintiff failed to meet that burden. So has plaintiff here.
Brody v. Albert Lifson & Sons, 17 N.J. 383 (1955), which plaintiff cites, does not compel a different result. Although the plaintiff in Brody slipped on composition terrazzo tiles in the entrance to defendant's business, she also established the tiles were wet and set on a pitch, and an expert testified that the tiles failed to contain abrasive components usually included to reduce slipperiness. See id. at 386-87. The Court held there was sufficient evidence for a jury to find the defendant negligent. See id. at 390. Unlike in Brody, plaintiff here has presented no competent evidence that the "intrinsic quality of the material used[,]" id. at 391, failed to comply with prevailing standards of care. --------
Nor does the mode of operation doctrine save plaintiff's claim. "Ordinarily, an invitee seeking to hold a business proprietor liable in negligence 'must prove . . . that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.'" Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 257 (2015) (quoting Nisivoccia, supra, 175 N.J. at 563). The mode of operation doctrine "relieves the plaintiff of the burden of proving actual or constructive notice of the dangerous condition[,]" creates "an inference of negligence," and requires defendants to produce evidence showing they did all that a reasonably prudent person would do. Id. at 263. The doctrine has been applied to businesses using a self-service mode of operation. Id. at 262. The doctrine recognizes the foreseeable risk that "a dangerous condition will go undetected and that patrons will be injured" when customers handle products and equipment without employees' supervision. Ibid.
Although the mode of operation doctrine relieves a plaintiff of the need to prove the premises owner's notice of a dangerous condition, the plaintiff must still prove there was a dangerous condition. See Nisivoccia, supra, 175 N.J. at 561 (the plaintiff slipped and fell on loose grapes); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 428 (1966) (the plaintiff slipped and fell on a string bean); Bozza v. Vornado, Inc., 42 N.J. 355, 358 (1964) (the plaintiff slipped and fell on a sticky substance).
The plaintiff must also prove the dangerous condition arose from the business's self-service nature. "The dispositive factor is . . . whether there is a nexus between self-service components of the defendant's business and a risk of injury in the area where the accident occurred." Prioleau, supra, 223 N.J. at 262. Although the Prioleau plaintiff identified the dangerous condition — water and oil on the floor — the doctrine did not apply because the dangerous condition was near the bathroom, and unrelated to the self-service aspect of the defendant's business. Id. at 264.
Plaintiff has presented no proof that any fallen food, debris or liquid created a dangerous condition. His contention that we may presume a dangerous condition existed, based on defendants' mode of operation, has no support in our case law. Once plaintiff's claim is confined to the floor's inherent qualities, it must fail, because plaintiff cannot prove a nexus between defendants' self-service operation and his injury. Although he slipped on a hard-surface floor near a buffet table, the floor was no different from one that might be found near a restaurant's restrooms or entrance.
Finally, plaintiff has not met the predicates for applying the res ipsa loquitur doctrine: "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." Khan, supra, 200 N.J. at 91 (internal quotation marks and citation omitted). As we observed in Overby, supra, a person's slip and fall on a shiny floor by itself does not bespeak negligence by the premises owner. See 28 N.J. Super. at 105. Furthermore, plaintiff may have fallen simply because he lost his balance or misstepped.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION