Goldsack v. Walmart Stores, Inc., 011720 FED3, 18-3229

Docket Nº:18-3229
Opinion Judge:JORDAN, Circuit Judge.
Party Name:JOHNA GOLDSACK, Appellant v. WALMART STORES, INC., AKA Walmart Supercenter; JOHN DOES 1-10 Fictitiousnames representing unknown individuals; XYZ CORPS 1-10 Fictitious names representing unknown corporations, partnershipsand/or Limited Liability Companies or other types of legal entities; 300-400 PARK PLAZA DRIVE, INC., a/k/a 300-400 Park Plaza ...
Judge Panel:Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.
Case Date:January 17, 2020
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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JOHNA GOLDSACK, Appellant

v.

WALMART STORES, INC., AKA Walmart Supercenter; JOHN DOES 1-10 Fictitiousnames representing unknown individuals; XYZ CORPS 1-10 Fictitious names representing unknown corporations, partnershipsand/or Limited Liability Companies or other types of legal entities; 300-400 PARK PLAZA DRIVE, INC., a/k/a 300-400 Park Plaza Dr Inc.

No. 18-3229

United States Court of Appeals, Third Circuit

January 17, 2020

NOT PRECEDENTIAL

Submitted Under Third Circuit L.A.R. 34.1(a) January 17, 2020

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-16-cv-05354) District Judge: Hon. Susan D. Wigenton

Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.

OPINION [*]

JORDAN, Circuit Judge.

This appeal arises from a slip-and-fall suffered by Appellant Johna Goldsack at a store operated by Appellee Walmart Stores, Inc. ("Walmart"). On summary judgment, the District Court dismissed Goldsack's claims in their entirety, concluding that she had failed to raise a genuine dispute as to any material fact that Walmart had notice of the condition that caused her fall or that she otherwise was entitled to an inference of negligence under New Jersey's "mode-of-operation" rule. Goldsack challenges both of those holdings on appeal. We conclude that she forfeited her arguments regarding notice by failing to raise them before the District Court. We also agree with the District Court that the record in this case cannot sustain the application of New Jersey's mode-of-operation rule to her claims. Accordingly, we will affirm.

I.

Background

On July 3, 2015, Goldsack went to a Walmart in Secaucus, New Jersey. Upon entering the store, Goldsack walked along an aisle at the front of the store to the customer service desk to return an item. As she walked, she passed rows of checkout registers on one side, and passed an in-store McDonald's, an ice machine, and a bathroom on the other. Goldsack did not notice any liquid on the floor while walking to the customer service desk and made it there without incident.

It took Goldsack "about [a] minute" to reach the service desk. (App. at 93.) Because the desk was "short-handed," a Walmart employee asked Goldsack to retrieve a replacement for the item she intended to return, which Goldsack did. (App. at 100-01.) The item was located "to the right" when she "walk[ed] out of customer service," and other than going to that area, she "didn't have to walk anywhere else." (Id.) After completing her return, Goldsack began walking back in the same direction from which she had first approached the service desk. This time, however, she slipped and fell on what appeared to be a puddle of water. The exact location of the accident is somewhat unclear. Goldsack herself indicated that she slipped in front of cash register number 7, between the register and the in-store McDonald's. However, there was deposition testimony from other witnesses suggesting she may have fallen closer to the ice machine, which was located in front of cash registers number 9 and number 10.1

Much of the argument on appeal focuses on the ice machine and its potential role in the accident. The ice machine is simply a freezer stocked with bags of ice. It is "self-service," in that customers purchase ice by removing the 10-pound bags of ice on their own and bringing the bags to any check-out register. The ice machine is stocked by Walmart employees who manually bring the bags from a freezer in the back of the store. A Walmart employee testified that "sometimes water drips from" the bags when Walmart employees stock the ice machine because "[the ice is] melting while they're putting it in[.]" (App. at 108.) Goldsack cites no evidence that the ice bags dripped during the process in which customers removed and purchased ice from the freezer.

Goldsack filed suit against Walmart in New Jersey state court alleging her July 2015 fall was caused by Walmart's negligence and that she suffered personal injuries as a result. Walmart timely removed the case to the District Court pursuant to 28 U.S.C. §§ 1441 and 1446.2

Walmart eventually moved for summary judgment on all of Goldsack's claims. It argued that, as a matter of law, Goldsack could not raise a triable issue of fact regarding her allegations of negligence for two reasons: (i) she lacked any evidence that Walmart had actual or constructive knowledge of the puddle that caused her fall, and thus could not establish a breach of duty under New Jersey law; and (ii) New Jersey's "mode-of-operation" rule was inapplicable to her claims. The mode-of-operation rule applies in the "self-service setting, in which customers independently handle merchandise without the assistance of employees or may come into direct contact with product displays, shelving, packaging, and other aspects of the facility that may present a risk." Prioleau v. Kentucky Fried Chicken, Inc., 122 A.3d 328, 338 (N.J. 2015). The rule "gives rise to a rebuttable inference that the defendant is negligent, and obviates the need for the plaintiff to prove actual or constructive notice." Id. at 335. The theory underlying the rule is that it would be inequitable to require a plaintiff to prove notice "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." Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314, 316 (N.J. 2003).

Goldsack...

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