KAREN L. LANDERS VS. MEDFORD FITNESS CENTERÂ (L-1391-14, BURLINGTON COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-2853-15T2
    KAREN L. LANDERS,
    Plaintiff-Appellant,
    v.
    MEDFORD FITNESS CENTER,
    Defendant-Respondent,
    and
    TERM PROPERTY LLC and/or SWEAR
    FITNESS,
    Defendants.
    ___________________________________
    Argued May 16, 2017 – Decided August 17, 2017
    Before Judges Ostrer and Moynihan.
    On appeal from the Superior Court of New
    Jersey, Law Division, Burlington County,
    Docket No. L-1391-14.
    Maria DeTitto argued the cause for appellant
    (Law Offices of Robert I. Segal, attorneys;
    Ms. DeTitto, on the brief).
    Mitchell S.       Berman    argued    the   cause    for
    respondent.
    PER CURIAM
    Plaintiff    Karen    Landers    appeals      from    the   trial     court's
    summary   judgment   dismissal       of    her     slip-and-fall        complaint.
    Plaintiff injured her right wrist and knee when she fell on the
    floor of a gym operated by defendant Medford Fitness Center.
    Relying on the mode-of-operation doctrine, plaintiff contends that
    Medford was liable for the injuries she sustained.                     In granting
    summary judgment, the trial court found the mode-of-operation
    doctrine inapplicable and plaintiff failed to demonstrate actual
    or constructive notice of a dangerous condition. Having considered
    plaintiff's    arguments   in   light      of    the   record    and    applicable
    principles of law, we affirm.
    I.
    The material facts were undisputed.                  On January 6, 2014,
    plaintiff slipped and fell while participating in a Zumba class
    at Medford.    The week before the accident, Medford had the group
    exercise studio floor waxed and re-coated.              It was the first time
    plaintiff had been in the studio since the floors were redone.
    About fifteen minutes into the class, plaintiff noticed drops
    of water on the floor, stopped dancing, and wiped the floor with
    a paper towel.    She did not know the source of the water, and did
    not notify the Zumba instructor who led the class from the front
    of the room.   She moved a few feet to the left to continue dancing.
    Twenty minutes later, plaintiff slipped and fell while performing
    2                                    A-2853-15T2
    a dance routine.    At the time, plaintiff was shifting to her left,
    when her right foot slipped from under her, causing her to fall
    on her right-side, injuring her right wrist and knee.     Plaintiff
    later claimed the moisture or dampness — as distinct from a puddle
    or water drops — caused her fall.       She could not identify the
    source of the moisture, and did not see anyone spill water or
    sweat profusely.    Although plaintiff said the floor was "shiny,"
    she testified that it did not feel any different than it did before
    it was re-coated.
    Colleen Normandin, an eyewitness to the accident, testified
    that "the floor was extremely slippery that day" and she believed
    the studio floor's condition caused plaintiff to fall.            She
    described the studio as humid, comparing it to a bathroom after a
    hot shower, and opined that the combination of the waxed floor and
    the humidity of the studio caused the floor to be slippery.1      She
    1
    Normandin also claimed she overheard an unidentified Medford
    employee describe the studio as "a skating rink." The trial court
    disregarded the statement as inadmissible hearsay. See R. 1:6-
    6. We agree. Although the statement was an apparent admission,
    the employee was unidentified.     Therefore, Medford could not
    determine whether the employee's statement was "within the scope
    of the agency or employment" when made, N.J.R.E. 803(b)(4), nor
    could Medford cross-examine the employee. See Beasley v. Passaic
    Cnty., 
    377 N.J. Super. 585
    , 603-04 (App. Div. 2005) (holding
    inadmissible under N.J.R.E. 803(b)(4) the statement of an
    unidentified declarant because it was impossible to determine
    whether the statement was within the declarant's scope of
    employment, or to cross-examine the alleged declarant); see also
    Carden v. Westinghouse Elec. Corp., 
    850 F.2d 996
    , 998-1002 (3d
    3                          A-2853-15T2
    conceded, however, that she did not hear anyone complain to the
    instructor about the slippery conditions.
    Maureen   Faber,   Medford's    general    manager   and    co-owner,
    testified in deposition that she inspected the group studio after
    plaintiff's accident and did not notice any substances or moisture
    on the floor.      She also testified that, for the month of January
    2014, she was not aware of any other incidents in which someone
    slipped in the group exercise studio.
    Plaintiff alleged in her complaint that Medford created a
    dangerous and hazardous condition, and failed to warn her of the
    dangers, which caused her injuries.              In its summary judgment
    motion, Medford argued that plaintiff failed to prove that it had
    actual or constructive notice of the dangerous substance that
    caused her fall.       Medford also noted that plaintiff failed to
    identify the source or moisture that caused her fall.              Plaintiff
    responded that, based on Medford's mode-of-operation, she was not
    required to prove actual or constructive notice.
    In granting summary judgment, Judge Susan L. Claypoole found
    that   plaintiff    failed   to   establish   that   Medford's    negligence
    caused her injuries.      Citing Prioleau v. Kentucky Fried Chicken,
    Cir. 1988) (concluding that a supervisor's statement to the
    plaintiff that "they wanted a younger person" was inadmissible
    under Fed. R. Evid. 801(d)(2)(D) because the proponent failed to
    "identify the unknown 'they'").
    4                              A-2853-15T2
    Inc., 
    223 N.J. 245
     (2015), Judge Claypoole concluded the mode-of-
    operation doctrine did not apply:
    The Court agrees with the notion that gyms are
    self-service businesses because it is simply
    the nature of how gyms operate. The second
    principle cited by [plaintiff], however, is
    where the argument for Mode-of-Operation as
    the correct analysis fails.
    "[T]he rule applies only to accidents
    occurring in areas affected by the business's
    self-service operations . . . ."     Prioleau,
    [supra,] 223 N.J. [at] 262.         Here, the
    accident occurred in the group exercise studio
    where [Medford] hosts exercise classes, i.e.,
    there are instructors supervising the classes.
    [Plaintiff] contends that the fact that
    [Medford] keeps exercise balls, dumbbells,
    exercise mats, and weights in the group
    exercise studio makes the area an area
    affected    by    [Medford's]     self-service
    operations, but offers no citation to the
    record to support that such equipment is in
    fact kept in there and that patrons utilize
    the group exercise studio other than when
    classes are occurring.
    Accordingly, the Court concludes that
    actual or constructive knowledge of the
    dangerous condition is the correct analysis,
    not Mode-of-Operation.
    The court also found that the record failed to support a finding
    of actual or constructive notice of a dangerous condition.
    On appeal, the parties essentially renew the arguments they
    presented to the trial court.
    II.
    5                            A-2853-15T2
    We review a trial court's grant of summary judgment de novo,
    employing the same standard used by the trial court.       Henry v.
    N.J. Dep't of Human Servs., 
    204 N.J. 320
    , 330 (2010).      Pursuant
    to that standard, the trial court shall grant summary judgment if
    the evidence "show[s] 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."     R. 4:46-2(c); see also
    Brill v. Guardian Life Ins. Co. of Am., 
    142 N.J. 520
    , 540 (1995).
    In order to sustain her negligence claim, plaintiff had 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) (internal quotation
    marks and citation omitted).    As this is a premises liability case
    and neither party disputes plaintiff's status as an invitee,
    Medford 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). Specifically, Medford had an affirmative duty "to discover
    and eliminate dangerous conditions, to maintain the premises in
    safe condition, and to avoid creating conditions that would render
    the premises unsafe."   
    Ibid.
       In asserting a breach of this duty,
    plaintiff needed to demonstrate "'that the defendant had actual
    or constructive knowledge of the dangerous condition that caused
    6                          A-2853-15T2
    the   accident.'"        Prioleau,     supra,   223   N.J.   at    257   (quoting
    Nisivoccia, 
    supra,
     
    175 N.J. at 563
    ).
    The parties' respective burdens 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 conduct or
    incidents."       Nisivoccia, supra, 
    175 N.J. at 563
    ; see Prioleau,
    supra, 223 N.J. at 258.           The dangerous condition may arise from
    customer negligence, the actions of employees, "or the inherent
    qualities    of    the    merchandise    itself."      Id.   at     263.       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."              Id. 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, 
    supra,
     
    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, supra, 223 N.J. at 262; see also Walker v. Costco
    7                                 A-2853-15T2
    Wholesale Warehouse, 
    445 N.J. Super. 111
    , 121 (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
    nature of the defendant's operation."        Prioleau, supra, 223 N.J.
    at 264 n.6 (internal quotation marks and citation omitted).
    Furthermore, to invoke the mode-of-operation 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.
    With these principles in mind, we conclude the trial court
    properly rejected plaintiff's reliance on the mode-of-operation
    doctrine.    The record fails to establish a nexus between the
    dangerous    condition   and   Medford's    mode-of-operation.       Even
    assuming for argument's sake that Medford operated in some respects
    8                            A-2853-15T2
    as a self-service business,2 its "self-service components," if so
    characterized, would have been limited to activities in which gym
    patrons exercised, unsupervised by employees, utilizing Medford's
    fitness equipment, such as dumbbells, free-weights, and cardio
    equipment.   See Prioleau, supra, 223 N.J. at 262 (describing a
    self-service operation as one "in which customers independently
    handle merchandise without the assistance of employees"); O'Shea
    v. K. Mart Corp., 
    304 N.J. Super. 489
    , 493 (App. Div. 1997) ("The
    absence of sales personnel leads to the inference that [the]
    defendant is a self-service store.").   However, plaintiff's injury
    was sustained during a Zumba class, which does not fall within one
    of Medford's self-service components.   Notably, she was not using
    any merchandise or equipment and, more importantly, she was in the
    2
    Extending the mode—of-operation doctrine to health clubs, and
    recognizing a rebuttable presumption of negligence, may create
    tension with the Court's statement in Stelluti v. Casapenn Enters.,
    LLC, 
    203 N.J. 286
    , 311 (2010) that health clubs "need not ensure
    the safety of its patrons who voluntarily assume some risk by
    engaging in strenuous physical activities that have a potential
    to result in injuries." The Court added, "Any requirement to so
    guarantee a patron's safety from all risk in using equipment,
    which understandably is passed from patron to patron, could chill
    the establishment of health clubs . . . [which] perform a salutary
    purpose by offering activities and equipment so that patrons can
    enjoy challenging physical exercise."        
    Ibid.
         Contrary to
    plaintiff's contention that the Zumba classroom should have been
    inspected before and during each class, the Supreme Court held "it
    would be unreasonable to demand that a fitness center inspect each
    individual piece of equipment after every patron's use . . . ."
    
    Ibid.
    9                           A-2853-15T2
    3
    presence    and       had   the   assistance      of   an    instructor.         Since
    plaintiff's injury did not involve a self-service component, the
    mode-of-operation doctrine does not apply.
    We also agree with the trial court that Medford did not have
    actual     or    constructive       notice      of     a    dangerous   condition.
    Constructive notice can be established "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) (internal quotation marks
    and citation omitted).              "The mere '[e]xistence of an alleged
    dangerous condition is not constructive notice of it.'"                         Arroyo
    v. Durling Realty, LLC, 
    433 N.J. Super. 238
    , 243 (App. Div. 2013)
    (quoting Sims v. City of Newark, 
    244 N.J. Super. 32
    , 42 (Law Div.
    1990)).
    3
    Plaintiff argues the instructor's presence was inconsequential,
    as is a supermarket employee's mere presence in a self-service
    produce aisle.    See Nisivoccia, 
    supra,
     
    175 N.J. at 561
     (the
    plaintiff slipped and fell on loose grapes); Wollerman v. Grand
    Union Stores, Inc., 
    47 N.J. 426
    , 428 (1966) (the plaintiff slipped
    and fell on a string bean). We disagree. The instructor actively
    guided the class, as would a trainer assisting a gym member in
    using exercise equipment, and as distinct from a supermarket
    employee who may restock bins, but does not directly interact with
    customers.      Simply  put,   the   "equitable   considerations,"
    Nisivoccia, supra, 
    175 N.J. at 563
    , that prompted application of
    the doctrine when a defendant resorts to a self-service mode-of-
    operation do not apply here.
    10                                  A-2853-15T2
    Here, the record fails to demonstrate that Medford had actual
    or constructive notice of a dangerous condition.                  No competent
    evidence was presented establishing the Zumba instructor's, or any
    other Medford employee's, awareness of the slippery conditions of
    the floor.     No testimony was provided that anyone complained,
    before the accident, about the slippery conditions, nor was there
    any evidence presented that any other patrons had slipped in the
    studio.
    Even if the instructor noticed that plaintiff mopped up the
    floor and was on notice that there was something wet on the floor,
    that, alone, did not provide constructive or actual notice of the
    alleged dangerous condition that caused plaintiff's fall.                First,
    plaintiff apparently toweled off the drops of water.              If anything,
    this   evidence    suggests   notice    of   the   removal   of    an   alleged
    dangerous condition, not its presence.             Second, plaintiff moved
    to a different location.      There is no evidence that the instructor
    or anyone else at the gym had actual or constructive notice of the
    moisture or dampness at plaintiff's second location.                    In sum,
    "[t]he absence of such notice is fatal to plaintiff's claim[] of
    premises liability."     Arroyo, supra, 433 N.J. Super. at 243.
    Affirmed.
    11                                   A-2853-15T2