ESTATE OF DIONYSIOS MARKETOS VS. CAREPOINT HEALTH (L-2292-15, HUDSON COUNTY AND STATEWIDE)

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3040-16T4
ESTATE OF DIONYSIOS MARKETOS,
Plaintiff-Appellant,
v.
CAREPOINT HEALTH,
Defendant-Respondent.
______________________________
Submitted March 21, 2018 – Decided June 15, 2018
Before Judges Koblitz and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
2292-15.
Matsikoudis and Fanciullo, LLC, attorneys for
appellant (Derek Fanciullo, on the brief).
Farkas & Donohue, LLC, attorneys for
respondent (Evelyn C. Farkas, of counsel;
Christine M. Jones, on the brief).
PER CURIAM
The estate of Dionysios Marketos appeals from the March 3,
2017 order granting summary judgment to Carepoint Health
(Carepoint) and dismissing plaintiff's slip and fall complaint.
Marketos was a priest who, on February 23, 2015, was giving
last rites to a member of his congregation in the Bayonne Medical
Center when he slipped and fell in the patient's hospital room,
breaking his hip. Carepoint's summary judgment motion alleged
that Marketos did not establish negligence. The trial court found
there was no actual or constructive notice of a dangerous condition
and that mode of operation did not apply. On November 20, 2016,
after being deposed, Marketos died from amyotrophic lateral
sclerosis (ALS). His estate was substituted as plaintiff.
"Summary judgment is appropriate 'when no genuine issue of
material fact is at issue and the moving party is entitled to a
judgment as a matter of law.'" Lee v. Brown, 232 N.J. 114, 126
(2018) (quoting Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J.
344, 366 (2016)); R. 4:46-2(c). "We review appeals from
determinations of summary judgment by employing the same standards
governing the trial court." Lee, 232 N.J. at 126. Plaintiff must
be given the benefit of all favorable inferences. R. 4:46-2(c).
The admissible evidence did not show a factual dispute that
would defeat summary judgment. Marketos did not know what caused
his fall, nor did he notice anything on the floor. The nurse's
report did not list a cause. She could not remember anything
about the fall when she was deposed. Five hospital reports
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contained the hearsay information that plaintiff slipped on ice.
A housekeeping employee submitted an affidavit stating:
I recall the patient saying that Father
Dionysios must have fallen because the floor
was wet, apparently because she had spilled
her ice water. I checked the floor and noticed
a wet spot, which I mopped up.
It is not known how long the wet spot was there or even whether
the wet spot came about before, during or after plaintiff was
treated after his fall on the floor of the hospital room. The
dying patient's statement is hearsay also.
"Hearsay is defined as 'a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.' Hearsay is
inadmissible unless it falls into one of the recognized
exceptions." State v. Kuropchak, 221 N.J. 368, 387 (2015) (quoting
N.J.R.E. 801(c) and citing N.J.R.E. 802).
Even if evidence existed that Marketos slipped on ice water
spilled by the patient, there was no testimony that the hospital
was negligent or violated any policy concerning cleaning up spills.
"Under the mode-of-operation rule, a business invitee who is
injured [on the premises of the business] is entitled to an
inference of negligence and is relieved of the obligation to prove
that the business owner had actual or constructive notice of the
dangerous condition that caused the accident." Prioleau v. Ky.
3 A-3040-16T4
Fried Chicken, Inc., 223 N.J. 245, 248 (2015). "The rule has only
been applied to settings such as self-service or a similar
component of the defendant's business, in which it is reasonably
foreseeable that customers will interact directly with products
or services, unassisted by the defendant or its employees." Id.
at 249. The "'factors bearing on the existence of a reasonable
probability' that a dangerous condition would occur [are]: 'the
nature of the business, the general condition of the premises, and
a pattern of conduct or recurring incidents.'" Id. at 258 (quoting
Bozza v. Vornado, Inc., 42 N.J. 355, 360 (1964)). The hospital
room was not a self-service cafeteria and did not conform to the
requirements of a mode-of-operation facility.
Without actual or constructive notice to defendant of the
unknown condition that caused the fall, the motion court properly
granted summary judgment dismissing the case.
Affirmed.
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