GABRIEL v. SAFEWAY, INC. et al
Filing
24
OPINION FILED. Signed by Judge Jerome B. Simandle on 11/7/11. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LOIS GABRIEL,
HON. JEROME B. SIMANDLE
Plaintiff,
CIVIL NO. 10-2256(JBS/JS)
v.
SAFEWAY, INC., et al.,
OPINION
Defendants.
APPEARANCES:
Vincent Anthony Guarna, Esq. (argued)
4620 Street Road
Trevose, PA 19053
Attorney for Plaintiff Louis Gabriel
Jamie Kurylo McMahon, Esq. (argued)
Jennifer Axelrod Kallet, Esq.
Tracey McDevitt Hagan, Esq.
REILLY, JANICZEK & MCDEVITT, PC
The Widener Building
Suite 410
One South Penn Square
Philadelphia, PA 19107
Attorneys for Defendants Safeway, Inc. and Genuardi's Family
Markets, LP.
SIMANDLE, District Judge:
I.
INTRODUCTION
This matter is before the Court on Defendants Genuardi's
Family Markets, L.P. and Safeway, Inc.'s (collectively
"Defendants") Motion for Summary Judgment. [Docket Item 11.]
The
Defendants argue that their motion for summary judgment should be
granted and the Plaintiff Lois Gabriel's ("Plaintiff") complaint
should be dismissed with prejudice.
opposition.
The Plaintiff has filed
The court held oral argument on November 4, 2011.
For the reasons discussed below, this Court will deny the
Defendants' motion for summary judgment.
II.
BACKGROUND
The instant action is a personal injury suit arising from
Plaintiff Lois Gabriel slipping and falling while shopping in the
produce section of Defendant Genuardi's Family Market
("Genuardi's").
This Court has diversity jurisdiction under 28
U.S.C. § 1332(a)(1) and (c), and New Jersey law provides the rule
of decision.
On or about 3:15 PM on September 23, 2008, the Plaintiff was
shopping in the produce section of Genuardi's with her fiancé,
Joseph Cipolloni.
(Pl.'s Ex. C, Deposition of Lois Gabriel
("Gabriel Dep.") at 44:3-9)).
While shopping in the produce
section, Plaintiff saw a stream of water and several grapes on
the floor. (Gabriel Dep. at 44:9-12; 45:19-46:18.).
The
Plaintiff tried to step across the grapes and water on the floor;
however, the Plaintiff was unsuccessful and slipped and fell
while walking down the produce aisle. (Gabriel Dep. 52:17.)
The
parties dispute whether the Plaintiff slipped on the water,
slipped on a grape or slipped on a combination of both.
The
Plaintiff sustained injuries as a result of her fall. (Gabriel
2
Dep. 59:3-24.)
Approximately 17 minutes before the Plaintiff's slip and
fall, Defendants' former employee, Noah Champoux, performed an
inspection of the produce area and this area was marked as
"clear."
(Def.'s Ex. F, Genuardi's Inspection Log).
This
inspection was a formal procedure known as a floor walk which was
conducted by Defendants' Customer Service Associates every hour
throughout each area of the grocery store.
(Def.'s Ex. G,
Deposition of Maureen Bruckler ("Bruckler Dep.") at 14:2-12).
The Customer Service Associates would walk a designated route
with a probe and each route had magnetic sensors positioned
throughout the store. (Bruckler Dep. at 14:13-15:2.)
If a spill
was detected on the floor walk, the employee was instructed to
stay with the spill until it was cleaned up, even if this
deterred their route. (Bruckler Dep. at 18:11-15.)
Once an area
was deemed clear, the Customer Service Associate on that route
would touch their probe to the magnetic sensor which then logged
the time of the inspection and that the area was clear. (Bruckler
Dep. at 14:13-15:2.)
A report of all the floor walk inspections
is printed out by the Defendants on a weekly basis.
Dep. at 19:5-14.)
(Bruckler
At 2:58 PM on September 23, 2008,
approximately seventeen minutes prior to Plaintiff's fall, the
scene was marked as clear by Customer Service Associate Noah
Champoux on the generated report of the floor walk. (Def.'s Ex.
3
G.)
The Plaintiff brought the instant action against the
Defendants alleging negligence/premises liability.
This case was
initially filed in the Superior Court of New Jersey, Atlantic
County Vicinage.
The Defendants then removed the action to the
District of New Jersey. [Docket Item 1].
After the case was
removed, the parties submitted a joint discovery plan and
exchanged discovery. [Docket Items 8 and 10.]
The Defendants then filed the instant motion for summary
judgment. [Docket Item 11.]
The Defendants argue that summary
judgment is appropriate because there is no evidence that the
Defendants breached their duty of care to the Plaintiff.
The
Defendants maintain that there was no actual notice of the
hazardous condition of the grapes and water on the floor.
In
addition, the Defendants contend that negligence cannot be
inferred because the Defendants could not reasonably anticipate
that hazardous conditions would regularly arise simply from the
Defendants' method or manner of doing business.
Further, even if
the inference of negligence should apply, the Defendants argue
that the inference is rebutted because the Defendants took
prudent and reasonable steps to avoid the potential hazard.
Finally, the Defendants maintain that the Plaintiff saw the spill
on the floor prior to her fall and consequently the Defendants
should not be liable for an open and obvious danger.
4
Therefore,
the Defendants contend that their motion for summary judgment be
granted.
The Plaintiff opposes Defendants' motion for summary
judgment.
First, the Plaintiff argues that the Defendants
spoiled evidence by failing to disclose photographs taken of the
produce section on the day of the accident.
The Plaintiff next
argues that discovery sanctions should be imposed on the
Defendants for failing to produce a former employee, Noah
Champoux, for a deposition or in the alternative, failing to
disclose Mr. Champoux's last known address.
In regards to the
merits of the case, the Plaintiff argues that summary judgment is
inappropriate because there are genuine issues of material fact
with regard to whether the Defendants created the dangerous
condition in the produce section or whether the Defendants mode
of operation of its business creates an inference of negligence.
III.
DISCUSSION
There are three distinct issues before the Court.
First,
the Court must determine whether a spoliation of evidence has
occurred as a result of the Defendants' non-disclosure of the
photographs of the produce section taken the day of the
Plaintiff's fall.
Second, the Court must analyze whether the
Defendants violated their discovery obligations by failing to
disclose the last known address of Noah Champoux, the Defendants'
former employee who allegedly conducted the floor walk inspection
5
of the produce section shortly before Plaintiff fell, and the
Defendants' failure to produce Mr. Champoux for a deposition.
If
so, the Court must then address whether the Defendants will be
permitted to rely on Mr. Champoux's Declaration or the Genuardi's
Inspection Log which consists of data compiled by Mr. Champoux
during his walkthrough of the produce section on September 23,
2008.
Finally, the Court must then address the merits of whether
summary judgment is appropriate in the instant action.
The Court
will address each of these issues separately below.
A.
Spoliation
The Plaintiff argues that the Defendants took photographs of
the scene and have failed to produce the photographs.
The
Plaintiff contends that the Defendants' failure is the result of
spoliation of evidence and a negative inference should be drawn
that the pictures would have been evidence of a negligently
maintained or created condition attributable to the Defendants.
In support of this argument, the Plaintiff attaches an email
correspondence between counsel about the request for production
of the photographs.
The Defendants argue against a negative inference and
maintain that the photographs were not intentionally concealed or
destroyed by the Defendants.
Rather, the Defendants state that
the photographs were not produced because they could not be
located and, after a reasonable investigation, are unable to be
6
found by the Defendants both at the corporate and the store
level.
An unfavorable inference arises against a party when the
party refuses or fails without explanation to produce evidence
which would tend to throw light on the issues before the court.
However, "it is well established that any inference only arises
when the evidence was 'within the party's possession or control'
and when the party actually suppressed or withheld the evidence."
Meyers v. Wokiewicz, 50 Fed. Appx. 549, 554 (3d Cir. 2002)
(citing Gumbs v. Int'l Harvester, Inc., 718 F.2d 88, 96 (3d Cir.
1983).
Importantly, "no unfavorable inference arises when the
circumstances indicate that the document or article in question
has been lost or accidentally destroyed, or where the failure to
produce it is otherwise properly accounted for." Gumbs, 718 F.2d
at 96.
In this case, a spoliation inference would be inappropriate.
There is no evidence that the Defendants actually suppressed or
withheld the photographs at issue.
The email correspondence
relied on by the Plaintiff supports the Defendants' assertion
that the photographs were lost and could not be found after a
diligent inquiry and a good faith effort to locate them.
The
Third Circuit has clearly held that "no unfavorable inference
arises when the circumstances indicate that the document or
article in question has been lost or accidentally destroyed."
7
Gumbs, 718 F.2d. at 96.
Therefore, the Plaintiff's argument for
a spoliation inference is without merit and will be denied.
However, while there is no inference, the Court will not
foreclose the jury from receiving evidence about the nonexistence of these photos.
The photos represent unique evidence
of the scene taken on the day of the accident and were part of a
file created by the Defendants.
The remaining contents of the
file has been exchanged in discovery and will be instrumental to
trying the case.
The Plaintiff may produce evidence to the jury
that the absence of photographs from the Plaintiff's case in
chief is not due to the Plaintiff's error but is the result of
the unintentional loss of the photographs by the Defendants, but
Plaintiff may not argue for a negative inference based upon these
facts.
B.
Discovery Issue
The Plaintiff next argues that the Defendants failed to
produce Noah Champoux for a deposition despite Plaintiff's
request.
Further, the Plaintiff maintains that the Defendants
did not provide the Plaintiff with Mr. Champoux's last known
address.
Therefore, the Plaintiff contends that the Defendants
should not be permitted to rely upon the testimony of Mr.
Champoux in this motion, which according to the Plaintiff
includes Genuardi's Inspection Log and Mr. Champoux's Sweep
Declaration.
8
The Defendants oppose this sanction and argue that they were
not required to produce Mr. Champoux for a deposition.
Specifically, the Defendants maintain that Mr. Champoux is a
former employee and therefore not within the Defendants' custody
or control.
In addition, the Defendants argue that the Plaintiff
did not request Mr. Champoux's deposition by a Notice of
Deposition as required under the Federal Rules of Civil
Procedure.
Therefore, the Defendants maintain that they should
be allowed to rely upon the Genuardi's Inspection Log and Mr.
Champoux's Sweep Declaration.
However, the Defendants do not
address their failure to provide the Plaintiff with the last
known address of Noah Champoux in their briefing.1
The Defendants were required to provide the last known
address of Noah Champoux to the Plaintiff and their failure to do
so prior to filing their motion for summary judgment is subject
to sanctions.
As part of their initial disclosure, Defendants
were required, “without awaiting a discovery request,” to provide
1
During oral argument, the Defendants' counsel represented
to the Court that she had disclosed Mr. Champoux's last known
address to the Plaintiff the previous day, November 3, 2011, when
she discovered his whereabouts through an internet search. While
this disclosure is excessively late as discovery on this case has
closed and the briefing for the instant summary judgment motion
was complete, the Court does recognize that the Defendants
ultimately took steps to comply with their disclosure
requirements to the Plaintiff. The Court admonishes the
Defendants to comply with Fed. R. Civ. P. 26(a) in future cases,
as failing to comply wastes valuable time and resources of the
parties and the court.
9
Plaintiff with both “the name and, if known, the address and
telephone number of each individual likely to have discoverable
information--along with the subjects of that information--that
the disclosing party may use to support its claims or defenses.”
Fed. R. Civ. P. 26(a)(1)(A).
Rule 37(c)(1) provides “mandatory
sanctions,” Fitz, Inc. v. Ralph Wilson Plastics Co., 174 F.R.D.
587, 591 (D.N.J. 1997), if a party “fails to provide information
or identify a witness as required by Rule 26(a),” unless the
failure was harmless or excused by “substantial justification.”
Fed. R. Civ. P. 37(c)(1).
Defendants failed to include the last known address of Noah
Champoux in their initial disclosures and now seek to rely upon
his declaration, signed shortly after the accident while he was
still in Defendants' employ, in support of their motion for
summary judgment.
In addition, the Defendants made no apparent
effort to supplement their disclosures pursuant to Rule 26(e),
Fed. R. Civ. P., until the day before oral argument was held on
this motion.
Further, the Defendants have likewise proposed no
substantial justification for their failure of disclosure, other
than the fact that Defendants records did not contain a last
known address for Champoux.
Therefore, sanctions are
appropriate.
Pursuant to Fed. R. Civ. Pro. 37, if a party fails to
identify a witness in its initial disclosures, the party is not
10
permitted to use that "witness to supply evidence on a motion."
Fed. R. Civ. Pro. 37(c)(1).
Therefore, the Defendants will not
be permitted to rely on the Sweep Declaration of Noah Champoux in
support of their motion for summary judgment, as this Declaration
is a sworn statement supplied by the witness.
However, the Defendants will be permitted to rely on the
Genuardi's Inspection Log in support of their motion for summary
judgment as this is a business record of the Defendants and not
testimony of Noah Champoux.
While Mr. Champoux was the Customer
Service Agent that marked the produce section clean during the
time at issue, the report printout of the Genuardi's Inspection
Log indicating the time, section, and state of cleanliness is not
the testimony of the individual Customer Service Agents who
performed the inspection.
Rather, Genuardi's Inspection Log is a
business record as defined in Fed. R. Evid. 803(6).
The
authenticity of the Genuardi's Inspection Log as a business
record kept in the ordinary course of business is established
through the deposition of Maureen Bruckler as a custodian.
Therefore, as Genuardi's Inspection Log is not evidence
supplied by Mr. Champoux and can be established as a business
record through the deposition of Maureen Bruckler, the Defendants
will be permitted to rely on the Genuardi's Inspection Log in
support of their motion for summary judgment.
In regards to the deposition of Mr. Champoux, the Defendants
11
did not have a duty to produce Mr. Champoux for a deposition as
he was a former employee and the Plaintiff failed to follow the
requirements of Fed. R. Civ. Pro. 30(b)(1).
It is well settled
that "a corporation may not be examined through its former
officers, directors, or managing agents, nor subordinate
employees or stockholders." Pettyjohn v. Goodyear Tire and Rubber
Co., No. 91-2681, 1992 WL 168085, at *1 (E.D. Pa. July 9.
1992)(citing Mitchell v. American Tobacco Co., 33 F.R.D. 262
(M.D. Pa. 1963)).
Consequently, neither the court nor a
corporation has any basis to compel a former employee to be
examined through deposition.
Id.
"To the extent plaintiff
wishes to depose non-parties he shall follow Rules 30 and 45 of
the Federal Rules of Civil Procedure."
Maynard v. Goodwill
Industries of Delaware, No. 08-801, 2009 WL 1402281, at *2 (D.
Del. May 18, 2009)(holding that a corporation has no power to
compel the depositions of former employees and therefore the
plaintiff was required to issue notice and a subpoena).
Here, it is undisputed that Noah Champoux is a former
employee of the Defendants who held a subordinate position as a
Customer Service Associate.
Consequently, the Defendants had no
obligation to produce him for a deposition.
Nevertheless, during oral argument, the Defendants informed
the Plaintiff and the court that Mr. Champoux had been located
and is currently living in Florida.
12
The Defendants agreed to the
Plaintiff's request to take the deposition of Mr. Champoux should
summary judgment be denied.
The court directed the parties to
schedule a deposition and permitted discovery to be reopened for
this purpose.
Therefore, no sanctions will be imposed on the Defendants
for the failure to produce Mr. Champoux for a deposition prior to
the summary judgment motion.
However, as the parties stated
during oral argument, Mr. Champoux has meaningful information
that needs to be discovered and the Plaintiff will be permitted
to do so through a deposition.2
C. Summary Judgment
1. Standard of Review
Summary judgment is appropriate "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
P. 56(a).
Fed. R. Civ.
A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
2
Defense counsel has spoken with Mr. Champoux, and the
Court requests counsel's cooperation in obtaining his attendance
at a deposition in Florida on a mutually convenient date. The
deposition may be convened by telephone or other remote means,
pursuant to Rule 30(b)(4), Fed. R. Civ. P. Plaintiff shall bear
reasonable deposition expenses for this discovery deposition,
while Defendants shall bear reasonable expenses with respect to
preserving Champoux's testimony for trial de bene esse, as the
witness is otherwise unavailable under Rule 32(a)(4)(B)(witness
is more than 100 miles from place of trial).
A
13
fact is "material" only if it might affect the outcome of the
suit under the applicable rule of law.
Id.
Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment.
Id.
Summary judgment will not be denied based on mere
allegations or denials in the pleadings; instead, some evidence
must be produced to support a material fact.
Fed. R. Civ. P.
56(c)(1)(A); United States v. Premises Known as 717 S. Woodward
Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993).
The
nonmoving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
[Rule 56] mandates the entry of summary judgment,
after adequate time for discovery and upon motion,
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. In
such a situation, there can be “no genuine issue as
to any material fact,” since a complete failure of
proof concerning an essential element of the
nonmoving party’s case necessarily renders all
other facts immaterial.
Celotex, 477 U.S. at 323.
However, the Court will view any evidence in favor of the
nonmoving party and extend any reasonable favorable inferences to
be drawn from that evidence to that party.
526 U.S. 541, 552 (1999).
Hunt v. Cromartie,
See also Scott v. Harris, 550 U.S.
372, 378 (2007) (The district court must “view the facts and draw
14
reasonable inferences in the light most favorable to the party
opposing the summary judgment motion.”).
Procedurally, the
parties seeking and opposing summary judgment must comply with
the requirements for filing a statement of material facts not in
dispute and a response thereto, as set forth in L. Civ. R.
56.1(a).
2. Failure to Submit a Statement of Material Facts
A Statement of Material Facts Not in Dispute is required to
be submitted in a motion for summary judgment pursuant to L. Civ.
Rule 56.1.
"A motion for summary judgment unaccompanied by a
statement of material facts not in dispute shall be dismissed."
L. Civ. Rule 56.1(a).
A moving party's failure to comply with
Rule 56.1 is itself sufficient to deny its motion.
Bowers v.
NCAA, 9 F. Supp. 2d 460, 476 (D.N.J. 1998) (“This failure to
comply with the Local Civil Rule would by itself suffice to deny
[defendant’s] motion for summary judgment.”)
The rule itself so
provides, and Defendants' failure to prepare a statement of
material facts not in dispute would itself justify denying
Defendants' motion for summary judgment.
However, some courts in this District have declined to deny
such motions on these grounds in instances where there is “no
evidence of bad faith on the part of the moving party.”
Fowler
v. Borough of Westville, 97 F. Supp.2d 602, 606-07 (D.N.J. 2000);
see Pipko v. CIA, 312 F. Supp.2d 669, 675 (D.N.J. 2004)(excusing
15
CIA’s failure to file statement “since the parties do not dispute
the procedural or factual background of this action” and there
was no evidence of bad faith.)
Instead, the court can choose to
“admonish that the parties consult the local rules in future
cases.”
Comose v. New Jersey Transit Rail Operations, Inc., 2000
U.S. Dist. LEXIS 20790 (D.N.J. 2000); see also Leme v.
International Total Serve., 56 F. Supp.2d 472, 477 n.4 (D.N.J.
1999).
In this case, the Court finds no evidence of bad faith and
finds the Defendants' factual representations to be wellorganized, and Plaintiff was able to address each factual
assertion in an orderly manner.
Therefore, the Court will not
deny summary judgment on these procedural grounds and will
address the merits of Defendants' motion.
However, the Court
must emphasize the importance of compliance with the Local Civil
Rules and urges the Defendants comply fully with L. Civ. R.
56.1(a) in the future.
The Court will now address the merits of the Defendants'
motion.
3. Negligence Claim
In this action, the Plaintiff contends that the Defendants
were negligent in failing to safely maintain the premises of the
produce section at Genuardi's Family Market. In order to
establish a claim for negligence, a plaintiff must prove three
16
elements:
(1) a duty of care owed by defendant to plaintiff; (2)
a breach of that duty by defendant; and (3) an injury to
plaintiff proximately caused by defendant's breach.
Endre v.
Arnold, 300 N.J. Super. 136, 142 (App. Div. 1997).
"Whether a
duty exists is solely a question of law to be decided by a court
and not by submission to a jury."
Id.
Business owners owe a duty of care to business invitees to
discover and cure dangerous conditions or circumstances, to
maintain a reasonably safe premises and to avoid creating
conditions which would render the premises unsafe.
O'Shea v. K
Mart Corp, 304 N.J. Super. 489, 493 (App. Div. 1997).
There is no dispute that the Defendants owed the Plaintiff a
duty of care or that the Plaintiff suffered damages.
The main
issues are whether the Defendants breached their duty of care and
whether the grapes and water on the floor were an open and
obvious danger, thus relieving the Defendants from any liability.
a. Breach
In addressing the issue of breach, "an injured plaintiff
asserting a business owner's breach of duty of due care 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." Nisivoccia v. Glass Gardens, Inc., 175
N.J. 559, 563 (2003).
Importantly:
Equitable considerations have, however, motivated this
Court to relieve the plaintiff of proof of that element
17
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. In those
circumstances, we have accorded the plaintiff an
inference of negligence, imposing on the defendant the
obligation to come forward with rebutting proof that it
had taken prudent and reasonable steps to avoid the
potential hazard.
Id. at 563-64.
Id. at 564.
This is known as the "mode of operation" rule.
This rule relieves the plaintiff from showing actual
or constructive notice of a dangerous condition and instead
entitles the plaintiff to an inference of negligence.
This
shifts the burden to the defendant, who can avoid liability by
showing that it did "all that a reasonably prudent man would do
in the light of the risk of injury [the] operation entailed.
Id.
(citing Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429
(1996).
"[T]he question of the adequacy of the store's efforts
to exercise due care [is] one for the jury." Nisivoccia, 175 N.J.
at 566.
The mode of operation rule has been consistently applied in
cases involving "self-service" retail stores.
Super. at 493.
O'Shea, 304 N.J.
New Jersey courts have defined "self-service" as
a "mode of operation designed to allow the patron to select and
remove the merchandise from the premises without intervention
from any employee of the storekeeper." Craggan v. Ikea USA, 332
N.J. Super. 53, 63 (App. Div. 2000).
Particularly, produce
sections in supermarkets have been readily found to utilize the
18
"self-service" mode of operation and consequently, New Jersey
courts have consistently held that an inference of negligence is
appropriate.
See
Wollerman, 47 N.J. 426 (plaintiff slipped on
string bean in produce area); Nisivoccia, 175 N.J. 559 (plaintiff
slipped on grapes in check-out area).
Here, the Defendants argue that the packaging of the grapes
is sufficient to defeat an inference of negligence because in
this case the grapes were sold in individual closed bags and were
usually merchandised inside an additional plastic bag within a
grape box.
However, the Defendants' focus on the specific packaging of
the grapes overlooks the important factor of the grapes being
sold in a self-service fashion from open bins.
When items are
sold through a self-service method, an inherent risk arises from
customers handling and removing items from the display on their
own without the assistance of an employee.
The merchandise, once
put on display by the store owner, does not remain untouched and
static.
Instead, customers examine the merchandise, remove the
merchandise and restack the merchandise which can create
hazardous conditions for future customers.
See O'Shea, 304 N.J.
Super. at 493 (explaining store owners are under a duty to guard
against injuries to customers due to the fallings of stacked
merchandise which may result from actions of other customers) and
Craggan, 332 N.J. Super. at 62 (reasoning the unifying danger
19
posed by the self-service mode of operation is allowing patrons
to select and remove merchandise without intervention from any
employee).
Therefore, New Jersey courts have consistently found
an inference of negligence appropriate in cases involving
injuries arising from a self-service mode of operation.
In this case, it is undisputed that the Defendants' produce
section utilizes a self-service mode of operation.
Customers
were encouraged to examine, select and remove bags of grapes from
open bins without any intervention of an employee.
This created
an inherent risk as the handling and restacking of grape bags by
customers, and conceivably the opening and closing of the grape
bags by the customers who sample the produce, results in disarray
which may cause loose grapes to fall on the ground.
Indeed, the
Defendants do not know how the grapes and water on which
Plaintiff fell came to be on the floor.
Therefore, an inference
of negligence is appropriate in this case under the mode of
operation rule.
The Defendants argue that even if the mode of operation rule
applies, the record is clear that the Defendants took prudent and
reasonable steps to avoid the hazardous condition and insure the
safety of its customers.
The Defendants rely on the Genuardi's
Inspection Log as evidence of the Defendants' hourly routine
inspections of the store, including the produce section, for
spills.
The Defendants emphasize that seventeen minutes prior to
20
the accident, the produce section was clear of spills.
However, the Defendants' "focus is too narrow.
The issue is
not simply one of notice; the issue concerns a condition created
by the proprietor for which notice is not required."
N.J. Super. at 493.
O'Shea, 304
Whether the Defendants efforts to exercise
due care are sufficient to rebut the inference of negligence is a
question of fact for the jury.
Nisivoccia, 175 N.J. at 566.
Giving all favorable inferences to the Plaintiff, there is a
genuine issue of material fact with regard to whether the
Defendants took sufficient steps to rebut the presumption of
negligence.
A rational jury could find that the Defendants'
hourly floor walks were not sufficient in a busy supermarket's
produce section.
Furthermore, Defendants' arguments pertaining
to the bagging of grapes for retail sale does not address the
stream or puddle of water that Plaintiff testified she saw on the
floor, seeming to emanate from a display box.
This is a material
factual dispute whether such water was present, and, if so, why
it was not detected in the alleged floor walk 17 minutes earlier.
These are issues of Defendants' negligence that a jury must
resolve.
During oral argument, the Defendants presented the
unpublished opinion Mizerak v. Village Supermarket, No. A-436008, 2010 N.J. Super. Unpub. LEXIS 645 (App. Div. March 26, 2010),
in support of their motion for summary judgment.
21
In this
opinion, the Appellate Division reversed a trial court's grant of
summary judgment by finding that there were genuine issues of
fact as to whether the defendant supermarket was negligent.
Importantly, the Appellate Division held that the plaintiff was
entitled to an inference of negligence when she slipped and fell
on a food-like substance in the bakery aisle.
The Appellate
Division reasoned:
If her [plaintiff's] testimony is accepted by a jury it
establishes that she fell on a food-like substance in an
aisle near the bakery. It is a fair inference that this
substance was on the floor as the result of carelessness
by customers in handling products. Because this handling
of products was consistent with defendant's mode of
operation, defendant was obliged to anticipate such
spillage and to use reasonable measures to promptly
detect and remove such hazards.
Id. at**7-8.
Therefore, because the court found that the
plaintiff was entitled to an inference of negligence and there
was a genuine issue of material fact as to whether this
presumption could be rebutted by the Defendant, the Appellate
Division reversed the trial court's grant of summary judgment and
remanded the matter.
In this case, there is also an inference of negligence and
genuine issue of material fact as to whether the Defendants had
taken prudent and reasonable steps to detect and remove spill
hazards.
While the Defendants have presented evidence of their
hourly floor walks, this evidence is not conclusive and raises a
genuine issue of material fact as to whether the presumption of
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negligence should be rebutted.
Further, there is a dispute
between the parties as to whether the Plaintiff slipped on water,
slipped on a grape, or slipped on a combination of both.
These
disputes create genuine issues of material fact from which a jury
could find that the Defendants breached their duty of care.
Therefore, summary judgment as to the Defendants' negligence
is inappropriate.
"[T]he question of the adequacy of the store's
efforts to exercise due care [is] one for the jury." Nisivoccia,
175 N.J. at 566.
b. Open and Obvious Danger
The Defendants also argue that summary judgment is
appropriate because even if there is an issue of fact as to their
negligence, the Defendants are not liable to the Plaintiff
because her injury was caused by an open and obvious danger.
The
Defendants maintain that the evidence shows the Plaintiff saw the
grapes and water on the floor prior to her fall.
Therefore, the
danger was open and obvious to her and the Defendants should not
be liable.
The Plaintiff does not address this argument in her
brief.
Under New Jersey law, patrons in a supermarket have "the
right to assume that the defendant [supermarket] had performed
its duty of exercising reasonable care to maintain the aisle in a
reasonably safe condition."
Krackomberger v. Vornado, Inc., 119
N.J. Super. 380, 383 (App. Div. 1972).
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This right exists until
the patron becomes aware or should have been aware of the hazard
which allegedly caused the accident.
If the patron was aware of
the hazard and was not exercising due care for her own
protection, then the patron was negligent.
The contributory
negligence of the patron is not a bar to recovery unless it was a
substantial factor in bringing about the harm.
Id.
It is clear from the record that the Plaintiff became aware
of the grapes and water on the floor prior to walking in them and
falling.
The Plaintiff's deposition testimony states:
Q. So you saw the spots of water and the grapes
prior to your fall?
A. Yes.
....
Q. You say you saw the grapes in the stream of
water prior to walking in that area. Did you take
any steps to avoid that area?
A. I was being careful not to walk on a grape.
That was it.
Q. How far away from the water and grapes were you
when you turned the corner?
A. Okay. When I turned the corner here and walked
down this way, I could see the grapes. There were
two grapes there, and there was some under the
counter. I tried to avoid the water and just
walked down that grape aisle, and that's all she
wrote.
(Gabriel Dep. 47:3-5; 51:22-52:10.)
In this case, the fact is undisputed that the Plaintiff
deliberately walked through water and grapes on the floor.
However, the degree of her negligence when compared with the
Defendants' negligence is a disputed issue of fact and a question
for a jury.
Giving all favorable inferences to the Plaintiff, a
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rational jury could find that the Plaintiff's negligence was not
a substantial factor in bringing about the harm.
Everyday
experience teaches that it may, or may not, be negligent to walk
through, or attempt to step past, some hazard in the pathway; the
jury must assess all the circumstances to determine whether
Plaintiff's decision to attempt to cross over the spillage was so
unreasonable that her comparative negligence exceeded that of the
Defendants in their mode of operation of the produce department.
It is only if Plaintiff's comparative negligence exceeds 50% of
the total fault that her recovery is barred; this Court cannot
say, as a matter of law, that no reasonable jury could find
Plaintiff's negligence was less than 50% of the total fault for
this accident.
"[I]f reasonable minds could differ as to whether any
negligence had been shown, the [summary judgment] motion should
be denied." Brill v. Guardian Life Ins. Co. of America, 142 N.J.
520, 536 (1995).
See also Schecter v. J.F. Kiely Const. Co.,
No.?? , 2008 WL 859242, *3 (N.J. App. Div. April 2, 2008) ("once
plaintiff's proofs, viewed most favorably towards plaintiff,
establish a genuinely disputed issue of fact as to any negligence
on the part of defendant, the degree of that negligence is a jury
question").
Therefore, summary judgment will be denied as there is a
genuine dispute of material fact regarding the degree of the
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Defendants' negligence and the degree of the Plaintiff's
negligence which should be left to the jury.
IV. PROCEDURE
The Defendants' motion for summary judgment is denied.
Arbitration of the case will be deferred until April.
On
November 10, 2011 at 2 PM, the parties will hold a telephone
conference with Magistrate Judge Schneider to schedule a
settlement conference, to be conducted within 30 days of this
order.
The parties have also agreed to schedule the deposition
of Noah Champoux for discovery purposes and possibly trial
purposes, as discussed above.
Should the settlement conference
and the arbitration be unsuccessful, this case will be promptly
scheduled for trial.
V.
CONCLUSION
The Defendants' motion for summary judgment is denied.
There are genuine issues of material fact as to whether the
Defendant was negligent and whether the Plaintiff's comparative
negligence was a substantial factor in bringing about her harm.
These questions are inappropriate for disposition on summary
judgment and should be determined by a jury.
Therefore, the Defendants' motion for summary judgment is
denied and the case will proceed in accordance with the procedure
outlined above.
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The accompanying Order will be entered.
November 7, 2011
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
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