Racine v. Rite Aid Pharm.

• Docket Number: A-3816-21
• Decision Date: 14 June 2023
• Parties: MICHAEL RACINE, Plaintiff-Appellant, v. RITE AID PHARMACY [1] and UNION MILL RUN, LLC, Defendants-Respondents, and NATIONAL JANITORIAL SOLUTIONS, Defendant.
• Court: New Jersey Superior Court — Appellate Division

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MICHAEL RACINE, Plaintiff-Appellant, v. RITE AID PHARMACY ^[1] and UNION MILL RUN, LLC, Defendants-Respondents, and NATIONAL JANITORIAL SOLUTIONS, Defendant.

No. A-3816-21

Superior Court of New Jersey, Appellate Division

June 14, 2023

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.

Argued May 16, 2023

On appeal from the Superior Court of New Jersey, Law Division Essex County, Docket No. L-5868-19.

John D. Gagnon, Jr. argued the cause for appellant (Rabb, Hamill PA, attorneys; Edward K. Hamill, of counsel and on the brief).

Vicki Shea Connolly argued the cause for respondents (Bolan Jahnsen Dacey, attorneys; Vicki Shea Connolly, on the brief).

Before Judges Messano and Gummer.

PER CURIAM

Plaintiff Michael Racine slipped and fell as he entered defendant Rite Aid's Irvington store and walked toward a hair-gel product he intended to purchase. Plaintiff suffered a fractured left tibia and filed a complaint against defendant alleging negligent maintenance of and failure to conduct reasonable inspections of the premises.^[2] Defendant moved for summary judgment following discovery. The motion judge granted the motion, concluding plaintiff had failed to demonstrate defendant had actual or constructive notice of a dangerous condition on its premises.

Plaintiff now appeals, contending the motion judge "drew all inferences against plaintiff rather than the reverse," and he presented sufficient evidence demonstrating defendant had "constructive notice of the condition that caused [plaintiff] to slip." We disagree and affirm.

We review a grant of summary judgment de novo, Branch v Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (citing Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595, 611 (2020)), "under the same standard that govern[ed] the court's determination," Goldhagen v. Pasmowitz, 247 N.J. 580, 593 (2021) (citing Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)). We "must '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.'" Meade v. Twp. of Livingston, 249 N.J. 310, 327 (2021) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

"Summary judgment should be granted . . . 'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020) (emphasis added) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). "The 'trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Town of Kearny v. Brandt, 214 N.J. 76, 92 (2013) (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In his deposition, plaintiff testified that he had not noticed anything on the floor as he approached the hair gel, which was located on the first shelf as customers entered the store. After the fall, plaintiff noticed a "dark greasy spot" on the floor, which he surmised was "[p]robably dirt mixed with grease or . . . hair gel," but he remained unsure. Plaintiff used his phone to call for an ambulance because none of defendant's employees assisted him.

Plaintiff retained an expert engineer who inspected the store's flooring more than one year after the fall. He opined that the vinyl tile would "become slippery when exposed to liquids" and should have had a "slip resistant" surface to conform to the "2015 International Building Code, New Jersey Edition." The report contained another industry standard, however, that stated interior walkways that were not slip resistant "shall be maintained dry during periods of pedestrian use."

Plaintiff offered no proof that defendant's employees were aware of any substance on the floor in the area of his fall. Nothing in the record indicates that defendant either did or did not have a routine inspection program in place at the store.^[3]

Recently, in Jeter v. Sam's Club, the Court succinctly summarized the general legal principles that guide our review:

Under New Jersey's general premises liability law, a proprietor owes "his invitees due care under all the circumstances." When an invitee is injured by a dangerous condition on the business owner's premises, the owner is liable for such injuries if the owner had actual or constructive knowledge of the dangerous condition that caused the accident. "A defendant has constructive notice when the condition existed 'for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.'" "Constructive notice can be inferred" from eyewitness testimony or from "[t]he characteristics of the dangerous condition," which may indicate how long the condition lasted. However, "[t]he mere '[e]xistence of an alleged dangerous condition is not constructive notice of it.'"

[250 N.J. 240, 251-52 (2022) (alterations in original) (first quoting and then citing Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 257 (2015); then twice quoting Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J.Super. 596, 602 (App. Div. 2016); and then quoting Arroyo v. Durling Realty, LLC, 433 N.J.Super. 238, 243 (App. Div. 2013)).]

The Court has sometimes "relieve[d] a plaintiff of the burden of proving actual or constructive notice . . . 'in circumstances in which . . . 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.'" Id. at 252 (quoting Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003)). The "nature of the business" exception, also known as the "[m]ode of operation rule," "alters a plaintiff[-]invitee's burden of proof" and relieves a plaintiff of the need to prove actual or constructive notice of the dangerous condition on the proprietor's premises. Ibid.

Plaintiff does not contend that the mode of operation rule applies in this case or that defendant had actual notice of a dangerous condition on the store's floor. Rather, plaintiff contends that by according him all the favorable evidence and inferences in the record, a jury could find defendant had constructive notice of a dangerous condition. He reasons that "the characteristics of the spill on the floor" - "the substance appeared dirty" - would permit the factfinder to logically infer "the substance had been on the floor for a significant time."

Plaintiff supports the argument with several unreported cases and our decision in Parmenter v. Jarvis Drug Store, Inc., 48 N.J.Super. 507 (App. Div. 1957). The unpublished cases are of no import, see Rule 1:36-3 (unpublished cases are neither binding nor precedential), and the facts in Parmenter are entirely distinguishable, except that the fall in that case also occurred in a drug store. Id. at 509.

In Parmenter, as the plaintiff entered the defendant's store at noon, she slipped and fell on the linoleum-covered floor just inside the entrance. Ibid. It had been raining "very hard," "coming down heavy," "all . . . morning." Ibid. The plaintiff described the condition of the floor as "'all wet' and 'all dirt.'" Ibid. A witness "testified that the floor was 'very wet because the rain had been coming in. Every time the door opened the wind blew the rain in.'" Ibid. The motion judge dismissed the case at the close of the plaintiff's evidence "on the ground of lack of notice of the wet condition on the part of the store operator." Id. at 510.

In reversing, we first noted that a "jury could easily have inferred that the slippery condition was due to the wetness of the floor," and the witness' testimony "supported the idea that the wetness of the floor was attributable to the entry of rain blown or carried in when the door was opened by customers." Id. at 511. Additionally, "[t]he dirtiness of the water tended to be corroborative of the length of time it lay on the floor. So, too, was the testimony as to the severity and duration of the storm . . ....