Nisivoccia v. Glass Gardens, Inc.

Decision Date22 January 2003
Citation818 A.2d 314,175 N.J. 559
PartiesKatherine NISIVOCCIA and Raymond Nisivoccia, Plaintiffs-Appellants, v. GLASS GARDENS, INC., d/b/a Shop-Rite of Rockaway, Defendant-Respondent, and John Does 1-4, Defendants.
CourtNew Jersey Supreme Court

Lewis Stein, Succasunna, argued the cause for appellants (Nusbaum, Stein, Goldstein, Bronstein & Kron, attorneys).

Robert Francis Gold, Morristown, argued the cause for respondent (Gold & Albanese, attorneys; James N. Barletti, on the briefs).

Anne P. McHugh, Princeton, argued the cause for amicus curiae, Association of Trial Lawyers of America-New Jersey (Pellettieri, Rabstein & Altman, attorneys).

The opinion of the Court was delivered by LaVECCHIA, J.

When approaching the checkout lanes in a supermarket, plaintiff Katherine Nisivoccia slipped and fell on some loose grapes lying about. The proofs did not show how the grapes came to be on the floor or how long they had been there. It was undisputed, however, that in the produce area grapes were displayed in open-top, vented plastic bags that permitted spillage. The question before us is whether Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 221 A.2d 513 (1966), applied, entitling plaintiff to an inference of negligence because the store should have anticipated that careless handling of grapes was reasonably likely during customer checkout, creating a hazardous condition. The trial court did not allow plaintiff that inference and instead directed a verdict for defendant that the Appellate Division affirmed. We reverse.

I.

The facts are straightforward. Approximately three feet from the entry of a supermarket checkout aisle, plaintiff slipped when she stepped on a grape with the heel of her right shoe. After she had fallen, she observed at least five other grapes within a three-foot diameter around her. No other grape had been squashed. She and her husband reported the incident to the employee at the checkout register and to the store manager.

Plaintiff filed this complaint in negligence against defendant Glass Gardens, Inc., doing business as Shop-Rite of Rockaway (the store).1 At trial, plaintiff and her husband testified to the circumstances involved in the slip and fall. The defense presented two store employees who were working on the day of the accident, a customer service clerk and the assistant manager. The customer service clerk recounted that he completed an incident report that day. However, the report failed to include any description of the accident area or what the post-accident inspection revealed. The store's assistant manager described the store's method of selling grapes and its floor maintenance program. The grapes arrive at the store from the wholesaler already packaged in clear plastic bags that are open at the top and have slits for air vents on the sides. Those bags are then placed in the produce area for display to customers. The manager acknowledged that grapes may fall onto the store floor during the process of being handled by either customers or store employees and that that tended to happen at the two locations where the grapes were handled most frequently, in the produce aisle and at the checkout area.

In respect of store maintenance, the manager stated that at least one full-time "porter" is on duty during all hours of operation. The porter is charged with monitoring the facility to identify and clean up spills or debris that may fall on the floor. All store employees are instructed to be vigilant for spillage or other potential hazards. If a spill is observed, the employee is required to contact a porter and must remain at the spot until the porter arrives to clean up the material. Although the manager asserted that typically two part-time porters are on duty during the store's hours of operation, he could not identify the number of porters on duty on the day of the accident.

At the close of testimony, plaintiff requested and was denied an inference of negligence. The trial court distinguished Wollerman, reasoning that the accident here did not occur, as in Wollerman, in the supermarket's produce aisle, nor did it occur close enough to the checkout cashier to have constituted part of the self-service operation. The court concluded that a reasonable juror could not find that any specific mode of store operation created a significant risk of harm, and it refused to make the store a general insurer of customer safety.

Defendant was granted a directed no-cause verdict because plaintiff had not produced any evidence of the store's actual or constructive notice of a dangerous condition. The Appellate Division affirmed in an unpublished opinion, and we granted certification, 171 N.J. 444, 794 A.2d 183 (2002).

II.

Business 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. Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433, 625 A.2d 1110 (1993); Restatement (Second) of Torts § 343 (1965). The duty of due care requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe. O'Shea v. K. Mart Corp., 304 N.J.Super. 489, 492-93, 701 A.2d 475 (App.Div.1997). Ordinarily an injured plaintiff asserting a breach of that duty must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. E.g., Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291, 471 A.2d 25 (1984)

. Equitable considerations have, however, motivated this Court to relieve the plaintiff of proof of that element in circumstances in which, 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. In those circumstances, we have accorded the plaintiff an inference of negligence, imposing on the defendant the obligation to come forward with rebutting proof that it had taken prudent and reasonable steps to avoid the potential hazard.

We first articulated that modification of the cause of action in Bozza v. Vornado, Inc., 42 N.J. 355, 359-60, 200 A.2d 777 (1964), wherein we approved the rationale of Torda v. Grand Union Co., 59 N.J.Super. 41, 45, 157 A.2d 133 (App.Div.1959), which had applied that principle. In Bozza, the plaintiff, when leaving the counter of a self-service cafeteria, claimed to have slipped on a sticky, slimy substance on the littered and dirty floor. We pointed out that spillage by customers was a hazard inherent in that type of business operation from which the owner is obliged to protect its patrons, and we held that when it is the nature of the business that creates the hazard, the inference of negligence thus raised shifts the burden to the defendant to "negate the inference by submitting evidence of due care." 42 N.J. at 360,200 A.2d 777. We further addressed the mode-of-operation rule in Wollerman, supra, 47 N.J. 426,221 A.2d 513, in which the plaintiff had slipped on a string bean in the produce aisle of a supermarket. We explained in Wollerman that the defendant's self-service method of operation required it to anticipate the hazard of produce falling to the ground from open bins because of the carelessness of either customers or employees, imposing upon the defendant the obligation to use reasonable measures promptly to detect and remove such hazards in order to avoid the inference that it was at fault. Id. at 429-30, 221 A.2d 513.

Our courts have adhered to the mode-of-operation rule since Wollerman, see, e.g., Craggan v. IKEA USA, 332 N.J.Super. 53, 61-62, 752 A.2d 819 (App. Div.2000)

; O'Shea v. K. Mart Corp., supra, 304 N.J.Super. at 492-93, 701 A.2d 475, and it has been incorporated as well into the...

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