ALEICE JETER VS. SAM'S CLUB (L-3779-17, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0716-19
ALEICE JETER,
Plaintiff-Appellant,
v.
SAM'S CLUB,
Defendant-Respondent,
and
LINDEN ROUTE ONE
ASSOCIATES,
Defendant.
___________________________
Argued April 27, 2021 – Decided May 17, 2021
Before Judges Haas, Mawla, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-3779-17.
John D. Gagnon argued the cause for appellant (Rabb
Hamill, PA, attorneys; John D. Gagnon, of counsel and
on the briefs).
Edward Solensky, Jr., argued the cause for respondent
(Cottrell Solensky, PA, attorneys; Mark Chereshinsky,
on the brief).
PER CURIAM
After plaintiff Aleice Jeter slipped and fell on a grape in the aisle of
defendant Sam's Club East, LP,1 Linden store, she filed a negligence complaint
seeking to recover for her neck and back injuries. Relying on the mode of
operation doctrine, plaintiff maintained she was excused from establishing that
defendant had actual or constructive notice of any dangerous condition at the
store.
Defendant maintained that the mode of operation doctrine was
inapplicable because it only sold grapes in tabbed, interlocking clamshell cases
that were further secured by tape. To resolve the issue, the court, sua sponte,
conducted a N.J.R.E. 104 hearing and concluded the mode of operation doctrine
was inapplicable. The court accordingly evaluated plaintiff's claim under well-
established negligence principles and dismissed her complaint after determining
plaintiff failed to establish that defendant was either actually or constructively
aware of the presence of grapes on the aisle floor prior to her fall. Plaintiff also
1
We note plaintiff initially improperly pled defendant as Sam's Club. Further,
in a February 5, 2018 order, plaintiff dismissed its action against Linden Route
One Associates.
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challenges a separate decision in which the court barred her treating chiropractor
from testifying at trial regarding her injuries and course of treatment.
We agree with court's decision to dismiss the complaint on notice grounds.
In light of our decision, we do not reach the merits of plaintiff's arguments
related to the court's decision barring the testimony of her treating chiropractor.
I.
We glean the following facts from the record developed at the N.J.R.E.
104 hearing. Plaintiff, while shopping with her daughter and granddaughter,
slipped on a grape in the "grocery main aisle" of defendant's store. The incident
was captured on a video surveillance camera and documented in a customer
statement report by Brian Crumm, defendant's assistant store manager.
Trial was initially scheduled for June 3, 2019, and twice adjourned until
August 12, 2019. On the initial trial date, defendant filed a motion in limine
seeking to bar a mode of operation jury instruction. Before that application was
decided, defendant filed a second motion in limine to bar the testimony of Mark
C. Zientek, D.C., plaintiff's treating chiropractor.
With respect to the application to bar Dr. Zientek's testimony, defendant
noted that plaintiff served Dr. Zientek's narrative report less than one week
before trial, despite conducting the plaintiff's evaluation two years earlier, and
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asserted it would therefore be "highly prejudicial" to permit Dr. Zientek to
testify. Plaintiff opposed the motion noting Dr. Zientek was explicitly identified
in interrogatories and argued that she intended to call Dr. Zientek as a fact
witness to testify regarding his treatment of plaintiff, not as an expert.
The court granted defendant's motion to bar Dr. Zientek from testifying at
trial. In its accompanying oral decision, the court relied on Leitner v. Toms
River Reg'l Schs., 392 N.J. Super. 80 (App. Div. 2007), and Bender v. Adelson,
187 N.J. 411 (2006), and concluded "anything [Dr. Zientek] would say [are]
opinions about what he's treating" and plaintiff was improperly "attempt[ing] to
produce a report just a few weeks before trial, long after arbitration, long after
the discovery end date."
With respect to defendant's application to bar plaintiff from seeking a
mode of operation charge, the court determined a N.J.R.E. 104 hearing was
necessary to determine the applicability of the doctrine and, if it did not apply,
whether triable issues of fact existed regarding defendant's actual or constructive
notice. At the hearing, Crumm testified that any grapes sold by defendant would
come in a "clamshell" and be taped closed. He further explained that grapes
delivered to the Linden store would have already been taped in the plastic
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clamshells from a distribution center in Pennsylvania, and that defendant did not
sell the grapes in any other containers.
On cross examination, Crumm "guarantee[d]" that on occasion customers
improperly "tampered with" the closed and taped clamshell packaging to taste
the grapes, a practice defendant's employees "frowned upon." Crumm also
stated he was not sure whether grapes were among the free food samples
occasionally provided to customers.
Plaintiff also testified at the hearing and stated that she shopped at the
Linden store monthly. She recalled falling "halfway past" the fruit and
vegetable aisle. She stated she previously observed loose grapes in the store and
saw store employees hand out free samples of grapes, "[l]oose vegetables, [and]
all type[s] of stuff" in "little cups." She also testified that she saw people
opening the grape packages "[p]lenty of times."
After considering plaintiff and Crumm's testimony, the court determined
the mode of operation doctrine was inapplicable to defendant's sale of grapes.
The court found that defendant was "deliberately not selling . . . grapes in a loose
form." It further explained that defendant's knowledge that customers
occasionally opened the clamshell case to sample grapes did not "circumvent"
defendant's mode of operation, which the court found was "targeted towards
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safety." As noted, the court also concluded there was no evidence defendant
had actual or constructive notice regarding "how long th[e] particular grape
[was] on the floor," and dismissed the complaint with prejudice.2 This appeal
followed.
II.
Before us, plaintiff argues that the court erred in ruling that the mode of
operation doctrine did not apply to the facts of her case. Specifically, she
contends defendant's knowledge that customers routinely opened the clamshells
to eat grapes and its practice of handing out loose grapes "on at least some
occasions," established a nexus between the dangerous condition and
defendant's method in selling grapes. We disagree.
2
We acknowledge the court's dismissal arose from defendant's motion in limine.
On appeal, plaintiff does not challenge the procedure employed by the court, or
its authority to conduct a N.J.R.E. 104 hearing to evaluate the issues provided
by the motion. We have reviewed the record and are satisfied the court's actions
did not violate plaintiff's due process rights. See Seoung Ouk Cho v. Trinitas
Reg'l Med. Ctr., 443 N.J. Super. 461, 471 (App. Div. 2015) (addressing the
impropriety of utilizing a motion in limine as a means to grant a dismissal on
the merits). Here, plaintiff opposed defendant's motion, participated fully in the
N.J.R.E. 104 hearing, and was not prevented from presenting any evidence or
arguments in support of her position. See also Sheild v. Welch, 4 N.J. 563, 567
(1950) (holding a court has broad authority to settle questions of law prior to
trial and "[if] no issue remains[,] judgment must necessarily follow for one or
the other party.")
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In order to sustain a negligence claim, plaintiff has the burden to
demonstrate four elements: "(1) a duty of care, (2) a breach of that duty, (3)
proximate cause, and (4) actual damages." Townsend v. Pierre, 221 N.J. 36, 51
(2015) (citation omitted). As this is a premises liability case, defendant owed
plaintiff "a duty of reasonable or due care to provide a safe environment for
doing that which is within the scope of the invitation." Nisivoccia v. Glass
Gardens, Inc., 175 N.J. 559, 563 (2003); see also O'Shea v. K. Mart Corp., 304
N.J. Super. 489, 492-93 (App. Div. 1997).
Specifically, defendant had an affirmative duty "to discover and eliminate
dangerous conditions, to maintain the premises in safe condition, and to a void
creating conditions that would render the premises unsafe." Nisivoccia, 175 N.J.
at 563. To establish a breach of this duty, plaintiff must demonstrate "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, 175 N.J. at 563).
The parties' respective burdens, however, change substantially under the
mode of operation doctrine, which addresses "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
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conduct or incidents." Nisivoccia, 175 N.J. at 563; see also Wollerman v. Grand
Union Stores, Inc., 47 N.J. 426, 429 (1966) ("If the operator chooses to sell
[products in a self-service] way, he must do what is reasonably necessary to
protect the customer from the risk of injury that mode of operation is likely to
generate . . . ."). When applicable, 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." Prioleau, 223 N.J. at 258. Instead, the defendant
has the "obligation to come forward with rebutting proof that it had taken
prudent and reasonable steps to avoid the potential hazard." Nisivoccia, 175
N.J. at 563-64.
"[T]he mode-of-operation doctrine has never been expanded beyond 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, 223 N.J. at 262; see also Walker v. Costco Wholesale
Warehouse, 445 N.J. Super. 111, 121-24 (App. Div. 2016) (recognizing the
application of mode of operation liability principles to businesses providing
goods through "self-service" operations). The Court specifically rejected the
idea that the doctrine applied whenever a risk of injury was "inherent in the
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nature of the defendant's operation." Prioleau, 223 N.J. at 264 n.6 (internal
quotation marks and citation omitted).
To invoke the doctrine, a plaintiff must prove that the dangerous condition
arose from the business's self-service operation. "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." Id. at
262. The doctrine will not apply, however, where there is no evidence that "the
location in which [the] plaintiff's accident occurred . . . bears the slightest
relationship to any self-service component of [the] defendant's business." Id. at
264.
In Nisivoccia, the plaintiff slipped and fell on some loose grapes when
approaching the checkout lanes. 175 N.J. at 561. The grapes were displayed i n
the produce section in open-top, vented plastic bags that permitted spillage.
Ibid. Although there was no evidence showing how the grapes fell to the floor,
or how long they had been there, the Court held that the mode of operation
doctrine was applicable. Id. at 561, 565. It found "[a] mode-of-operation charge
is appropriate when loose items that are reasonably likely to fall to the ground
during customer or employee handling would create a dangerous condition." Id.
at 565. The court concluded that due to the way the grapes were packaged, it
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was foreseeable that loose grapes could fall to the ground, creating a dangerous
condition for customers walking in that area. Ibid.With these principles in mind, we evaluate the record before us. Here, it
is undisputed that defendant operated a self-service business that required
customers to "independently handle" the goods they sought to purchase.
Prioleau, 223 N.J. at 262. Further, the location of plaintiff's fall occurred in the
grocery main aisle, halfway past the produce area according to plaintiff's
testimony. As such, the location of her accident "bears [a] . . . relationship" to
the self-service component to defendant's business. Id. at 264.
The record, however, fails to establish a nexus between the dangerous
condition and defendant's mode of operation. Defendant's mode of operation
was to sell grapes in sealed clamshells. Indeed, it "frowned upon" customers
who undid the tape to open the containers before purchasing the grapes and
characterized that practice as "tamper[ing]" with the product. The self-service
component of defendant's business, therefore, is dissimilar to the customers who
handled loose grapes in Nisivoccia. See 175 N.J. at 562. Further, the "nature
of [defendant's] business" did not result in a "pattern of conduct or incidents"
that would support application of the doctrine. Id. at 563.
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We agree with the court that the fact that defendant knew certain
customers tampered with the clamshells or that they were designed to be opened
and closed does not mandate a different result. Many products commonly sold
in grocery stores are designed to be resealed between uses, such as cookies or
other snacks. As noted by the Supreme Court, the mode of operation doctrine
applies when "a business permits its customers to handle products and
equipment, unsupervised by employees." Prioleau, 223 N.J. at 262 (emphasis
added). We are satisfied that defendant's actions, or knowledge that certain
customers improperly opened the closed containers, did not invite customers to
act in such a manner.
We also reject plaintiff's reliance on Walker as that case is factually
inapposite. There, the plaintiff was shopping at the defendant's warehouse store
and passed a vendor offering free samples of cheesecake in small paper cups.
445 N.J. Super. at 114. Plaintiff then slipped on a substance on the floor, which
he initially perceived as having a yogurt-like appearance. Ibid. At trial, plaintiff
could not estimate the distance between where he fell, and the cheesecake stand,
but was able to indicate on a diagram where both were located. Ibid. The trial
court declined to give a mode of operation charge. Id. at 118. We remanded,
finding there was a nexus between plaintiff's fall and the cheesecake stand and
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that there was a "plausible basis . . . to believe that the white substance could
have been cheesecake." Id. at 126-27.
Here, the only evidence in the record regarding defendant's practice of
providing loose, free samples of grapes to customers is plaintiff's testimony that
it occurred at some indeterminate point and at some unknown location in the
Linden store. In this regard, the record, or any reasonable inference to be drawn
therefrom, does not support the conclusion that grapes were given out on the day
or even the week of plaintiff's fall. As such, any inference of a nexus between
providing sample grapes and plaintiff's fall would be entirely speculative.
Simply put, there was no "reasonable factual basis" for the court to charge the
mode of operation doctrine. Walker, 445 N.J. Super. at 120.
III.
Having determined the court correctly applied the mode of operation
doctrine, we evaluate plaintiff's claim under traditional negligence principles.
As noted, plaintiff's counsel acknowledged that the record was devoid of any
proofs to establish defendant had actual notice of grapes in the aisle of the
Linden store where plaintiff fell. Plaintiff argues, however, that defendant had
constructive notice because defendant's in-store surveillance video did not
"depict any inspection, cleaning, or measures performed by defendant's
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employees in the area where the incident occurred." She further contends
defendant "did not provide any evidence whatsoever that it took any measures
to ensure the safety of its premises by way of performing regular inspections,
training of its employees to address safety issues, or the like." Again, we
disagree.
Courts "have long held that it is ordinarily a plaintiff's burden to prove
negligence, and that it is never presumed." Khan v. Singh, 200 N.J. 82, 91
(2009). "[I]ndeed there is a presumption against it . . . ." Buckelew v.
Grossbard, 87 N.J. 512, 525 (1981). Thus, "an invitee seeking to hold a business
proprietor liable in negligence '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.'" Prioleau, 223 N.J. at 257 (citation omitted).
"The mere '[e]xistence of an alleged dangerous condition is not constructive
notice of it.'" Arroyo v. Durling Realty, L.L.C., 433 N.J. Super. 238, 243 (App.
Div. 2013) (alteration in original) (citation omitted).
A defendant has constructive knowledge "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.'" Troupe v. Burlington Coat Factory
Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016) (citation omitted).
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"The characteristics of the dangerous condition giving rise to the slip and fall "
or eyewitness testimony regarding the length of time the conditions existed "may
support an inference of constructive notice about the dangerous condition."
Ibid.In Troupe, the plaintiff slipped and fell on a berry located on the floor of
the defendant clothing store. 443 N.J. Super. at 600. The court noted the
plaintiff did not provide any evidence showing how long the berry remain ed on
the floor, or that any employee should have known the berry was there. Id. at
602. Therefore, the court ruled the defendant had no constructive notice
regarding the berry on the floor. Ibid.
Here, as in Troupe, the record is devoid of any evidence the defendant had
constructive notice of grapes on the floor in any location in the Linden store at
any time. Plaintiff proffered no evidence showing defendant's employees knew
or should have known before plaintiff's fall that there were grapes on the main
aisle's floor. Moreover, there was no evidence about how long grapes were
there, such as eyewitnesses or any aged characteristics of the grapes, to indicate
the amount of time defendant had to discover and remedy the situation. The
surveillance video plaintiff relies on depicts from a distance many people
walking in the same area prior to her fall but does not permit an inference that
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grapes were on the ground at all, let alone for any length of time. 3 The absence
of evidence of "actual or constructive notice . . . is fatal to plaintiff's claims of
premises liability." Arroyo, 433 N.J. Super. at 243; see also Brown v. Racquet
Club of Bricktown, 95 N.J. 280, 291 (1984).
Because we conclude the court correctly dismissed the matter, we need
not consider plaintiff's argument that the court committed reversible error in
barring the testimony and expert report of Dr. Zientek. To the extent we have
not addressed any of plaintiff's remaining arguments, it is because we have
determined that they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
3
Plaintiff's counsel raised for the first time during oral arguments before us that
the surveillance video depicts one of defendant's employees looking at what
could be a grape on the ground prior to plaintiff's fall. We decline to address
this issue as it was not raised before the trial court. See Nieder v. Royal Indem.
Ins., 62 N.J. 229, 234 (1973). In fact, such proofs would constitute actual notice,
which plaintiff's counsel explicitly conceded before the court did not exist in the
record. In any event, were we to address the claim on the merits, we conclude
after having reviewed the video that plaintiff's claim that defendant's employee
saw a grape on the aisle prior to plaintiff's fall is unsupported by the record.
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