Opinion
DOCKET NO. A-4244-13T2
10-28-2015
NELIA UMENGAN, Plaintiff-Appellant, v. G&K SERVICES, INC., Defendant-Respondent, and PATHMARK STORES INC., Defendant.
Edward M. Colligan argued the cause for appellant (Colligan and Colligan, attorneys; Mr. Colligan, on the brief). Shanna R. Torgerson argued the cause for respondent (Zaremba Brownell & Brown, PLLC, attorneys; Christopher J. Camera, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0860-12. Edward M. Colligan argued the cause for appellant (Colligan and Colligan, attorneys; Mr. Colligan, on the brief). Shanna R. Torgerson argued the cause for respondent (Zaremba Brownell & Brown, PLLC, attorneys; Christopher J. Camera, on the brief). PER CURIAM
Plaintiff Nelia Umengan appeals from the Law Division's April 15, 2014 order granting summary judgment to, and dismissing her complaint against, defendant G&K Services, Inc. We affirm.
I.
The following facts are derived from the evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff, the non-moving party. Polzo v. Cty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
During the late morning hours of February 23, 2010, plaintiff went to the Pathmark store in Edgewater to shop for groceries. After entering the store, plaintiff alleged she tripped over a partially rolled-up floor mat in the vestibule. She fell backwards, landed on a cement floor, and injured her back and neck. Plaintiff testified at her deposition that she saw that the right end of the mat was "curled up" prior to her fall.
Defendant provided Pathmark with all of the floor mats it needed on a weekly basis. Defendant's service agreement with Pathmark listed the number, size, and color of each of the mats it was to supply to the store. The agreement did not require defendant to supply, and defendant did not recommend that Pathmark select, any particular brand of mat. The mat plaintiff tripped over was manufactured by a company called Mountville Mills.
Defendant's service technicians would go to Pathmark each week, pick up the floor mats from the prior week, and deliver new, clean mats. Pathmark employees determined where the mats would be placed in the store. One of defendant's service technicians, Cesar Sanchez, testified that defendant did not "have any control whatsoever over the mats that [it] provide[d] to Pathmark once they [were] placed down in the Pathmark location until the time [the service technicians] c[a]me back the following week." Sanchez further noted that "it's at the discretion of the [Pathmark] stores as to whether they move th[e] mats or not[,]" and "[it is] fair to say that within seconds after [defendant] leaving the Pathmark location after [the service technicians] place the mats down, that the mats could be moved by Pathmark employees."
Francis Wilson, a former store manager, testified that defendant did not install or maintain the mats after the service technicians delivered them; rather, Pathmark employees would correct any issues that arose, as well as choose the locations of the mats. Wilson stated that the mats "were picked up" by Pathmark employees "[a]ll day long, every day." The mats would also be rolled up at night by the cleaning crew and then put back in place after the floors were mopped. In addition, if a mat got dirty, Pathmark employees would roll it up and replace it with another mat defendant delivered that week.
Plaintiff's expert concluded that the mat in question was "not . . . properly fixed in place, or provided with a slip resistant backing as required by recognized industry standards . . . so as to not . . . creat[e] a tripping hazard[.]" However, Patrick McCarthy, one of defendant's general managers, stated in an affidavit that he was aware of the rental agreement between Pathmark and defendant, and that defendant did not "in any matter direct or counsel Pathmark on which mats to rent." McCarthy also reiterated Wilson's testimony, noting that "once the mat[s] [were] rented, [defendant] had no input over where the mats were placed."
Defendant usually delivered new mats to Pathmark on Tuesdays between 6:00 a.m. and noon. February 23, 2010 was a Tuesday. However, Sanchez testified that the "service that was scheduled for February 23rd was done on the day before[,]" February 22, 2010. Thus, the record does not indicate whether a service technician or a Pathmark employee placed the mat in the vestibule on February 23, or whether the mat plaintiff tripped on had been placed there the preceding day. Regardless of when that particular mat was delivered, the record also does not indicate whether a Pathmark employee moved or replaced the mat prior to plaintiff's fall.
On January 29, 2012, plaintiff filed a complaint against Pathmark and defendant. She alleged that Pathmark, as the owner of the premises where she fell, "failed to maintain the store in a safe and proper manner." Plaintiff further alleged that defendant, as "the owner[] or [the entity] otherwise in control of the entranceway floor mats . . . [,] negligently failed to properly install . . . [the mats] in a safe and proper manner . . . . [and] to properly notify, inform, instruct, and warn Pathmark and the intended users of the mats of [the] hazards created by the mats." The complaint further alleges that plaintiff fell "[a]s a result of [defendant's] aforesaid negligence." Plaintiff also asserted a products liability claim against defendant, alleging that "the mats manufactured, sold, leased, installed[,] or otherwise provided by . . . defendant . . . were defective and not reasonabl[y] fit, suitable[,] and safe for their intended purpose[s] as the defendant failed to provide adequate warnings or instructions." Following the completion of discovery, defendant filed a motion for summary judgment, which plaintiff opposed.
Pathmark filed a petition for bankruptcy and plaintiff subsequently dismissed her claims against the store.
After hearing oral argument, Judge Estela M. De La Cruz rendered a thorough oral opinion, granting defendant's motion and dismissing plaintiff's complaint. The judge found that defendant was not negligent because it owed no duty of care to plaintiff. The judge explained the defendant merely rented floor mats to Pathmark, which then decided where they would be placed in the store. Once the mats were delivered to the store, defendant had no role in their maintenance or control. Thus, the judge concluded that any duty of care owed to plaintiff was owed by Pathmark, not by defendant.
Judge De La Cruz also rejected plaintiff's strict products liability argument. The judge found that defendant was not the "manufacturer" of the floor mats, but had merely rented them to Pathmark. Therefore, the judge ruled that defendant could not be found liable to plaintiff under a products liability theory. This appeal followed.
II.
On appeal, plaintiff argues that the judge erred in granting summary judgment because there was "a question of fact as to whether [defendant] breached [its] duty to Pathmark customers and negligently provided, installed and maintained unsafe mats that were unsuitable and thereby created a foreseeable trip hazard that caused plaintiff['s] injuries." Plaintiff also argues that defendant "is liable to [her] under strict products liability." We disagree.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015) (citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)). "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.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, 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.'" Ibid. (quoting Brill, supra, 142 N.J. at 540). 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) (citing Prudential Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div), certif. denied, 154 N.J. 608 (1998)). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
"[A] negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). "[W]hether a defendant owes a legal duty to another and the scope of that duty are generally questions of law for the court to decide." Robinson v. Vivirito, 217 N.J. 199, 208 (2014) (citing Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996)).
"[N]o bright line rule . . . determines when one owes a legal duty to prevent a risk of harm to another." Wlasiuk v. McElwee, 334 N.J. Super. 661, 666 (App. Div. 2000). The imposition of a duty depends on the interplay of many factors, including: (1) the relationship of the parties; (2) the nature of the attendant risk; (3) the opportunity and ability to exercise care; and (4) the public interest in the proposed solution. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (citing Goldberg v. Housing Auth., 38 N.J. 578, 583 (1987)). "Ultimately, [New Jersey] Supreme Court cases repeatedly emphasize that the question of whether a duty exists is one of 'fairness' and 'public policy.'" Wlasiuk, supra, 334 N.J. Super. at 666-67 (quoting Hopkins, supra, 132 N.J. at 439).
Applying these factors here, and viewing the evidence presented at trial in the light most favorable to plaintiff, we conclude, as did Judge De La Cruz, that the record does not support plaintiff's claim that defendant owed her a duty of care under the circumstances presented in this case. Defendant had merely delivered floor mats to Pathmark, which was solely responsible for determining their placement in its store, and for maintaining and inspecting them until defendant returned the next week with new, clean mats. Plaintiff could not demonstrate that one of defendant's service technicians placed the mat she tripped on in the vestibule and could not even prove when the mat was put there. Thus, the judge properly granted summary judgment to defendant.
We also agree with Judge De La Cruz that plaintiff's strict products liability claim lacked merit. Products liability actions are governed by the Products Liability Act (the Act). N.J.S.A. 2A:58C-1 to -11. N.J.S.A. 2A:58C-2 states:
A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable[,] or safe for its intended purposed because it: a. deviated from the design specifications, formulae, or
performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner.
The Act defines "product seller" as
In pertinent part, the Act defines "manufacturer" as "any person who designs, formulates, produces, creates, makes, packages, labels or constructs any product or component of a product . . . ." N.J.S.A. 2A:58C-8. Thus, defendant was not the "manufacturer" of the floor mats it rented to Pathmark. --------
any person who, in the course of business conducted for that purpose: sells; distributes; leases; installs; prepares or assembles a manufacturer's product according to the manufacturer's plan, intention, design, specifications[,] or formulations; blends; packages; labels; markets; repairs; maintains or otherwise is involved in placing a product in the line of commerce.Defendant was a "product seller" under the Act because it rented (leased) the floor mats to Pathmark.
[N. J.S.A. 2A:58C-8.]
However, N.J.S.A. 2A:58C-9(a) states that "[i]n any product liability action against a product seller, the product seller may file an affidavit certifying the correct identity of the manufacturer of the product which allegedly caused the injury, death[,] or damage." "Upon filing the affidavit . . . , the product seller shall be relieved of all strict liability claims, subject to the provisions set forth . . . ." N.J.S.A. 2A:58C- 9(b). N.J.S.A. 2A:58C-9(d)(1-3), in turn, describes the exceptional situations where a product seller would remain liable:
(1) [t]he product seller has exercised some significant control over the design, manufacture, packaging[,] or labeling of the product relative to the alleged defect in the product which caused the injury, death[,] or damage; or
(2) [t]he product seller knew or should have known of the defect in the product which caused the injury, death[,] or damage or the plaintiff can affirmatively demonstrate that the product seller was in possession of facts from which a reasonable person would conclude that the product seller had or should have had knowledge of the alleged defect in the product which caused the injury, death[,] or damage; or
(3) [t]he product seller created the product which caused the injury, death[,] or damage.
Here, defendant advised plaintiff that Mountville Mills manufactured the mats. Thus, defendant could not be held strictly liable for any defect in the mats. In addition, nothing in the records indicates that defendant exercised any control over the design or manufacture of the mats; knew there was any defect in the mats; or created any defect in the mats. N.J.S.A. 2A:58C-9(d). Therefore, Judge De La Cruz correctly held that defendant could not, as a matter of law, be held liable under the Act.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION