LENHERR v. THE MOREY ORGANIZATION, INC. et al

Filing 33

OPINION filed. Signed by Judge Noel L. Hillman on 12/23/2015. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KIMBERLY LENHERR,
Civil No. 13-4731 (NLH/KMW)
Plaintiff,
OPINION

v.
THE MOREY ORGANIZATION, INC.,
et al.
Defendants.

APPEARANCES:
JOSEPH S. LUKOMSKI
ROVNER, ALLEN, ROVNER, ZIMMERMAN, LUKOMSKI & WOLF, ESQS.
411 ROUTE 70 EAST
SUITE 100
CHERRY HILL, NJ 08034-2414
On behalf of plaintiff
STEVEN J. FRAM
3501 BOARDWALK
WILDWOOD, NJ 08260
On behalf of defendants
HILLMAN, District Judge
Presently before the Court is the motion of defendants for
summary judgment on plaintiff’s claims resulting from injuries
she sustained when she slipped and fell while a patron at
defendants’ water park.

For the reasons expressed below,

defendants’ motion will be denied without prejudice to their
right to refile their motion as indicated in this Opinion.
BACKGROUND
On August 10, 2011, plaintiff, Kimberly Lenherr, visited

defendants’ 1 Raging Waters water park in Wildwood, New Jersey
with her children.

Around 5pm that day, plaintiff wanted to go

on the Sky Pond ride with her daughter.

In order to get to that

ride, they had to pass by the landing area of the Speed Slide
ride.

The Speed Slide ride requires riders to use blue mats,

which are stored in a corral across the walkway from the landing
pool.

Speed Slide riders take a mat from the corral, walk with

the mat to the top of the ride, slide down on the mat, land in
the pool, take it with them out of the pool, down two, yellowlined steps, and then either hand it to the lifeguard
specifically in charge of collecting the mats or put it back in
the corral.
On her way to the Sky Pond, plaintiff was carrying a double
tube which was required for that ride.

Plaintiff attempted to

circumvent the crowded walkway at the base of the Speed Slide
ride by going to the left of the walkway and walking up and
along the two steps of the Speed Slide landing pool.

Plaintiff

claims that when she went to step up on the steps, she stepped
on a mat used for the Speed Slide ride.

Plaintiff claims that

she slipped on the mat and fell to the ground, causing her to
suffer a fractured dislocation of her left ankle that required

1

Defendants are The Morey Organization, Inc., Morey's Pier,
Inc., Raging Waters Mariner's Landing Partnership, Raging Waters
Theme Park at Mariner's Landing, Mariner's Landing, Inc., and
Fred J. Langford.
2

two surgeries with the implantation of plates and screws.
Defendants’ surveillance video captured the few seconds
before plaintiff’s fall and a few minutes after it. 2

Defendants

dispute that plaintiff slipped on a mat because no mat is
visible in the video directly prior to her fall.

Defendants

also argue that even if plaintiff did slip on a mat, it must
have fallen in front of her only seconds before.

Plaintiff

counters that the video quality is poor, and that it is unclear
how long the mat was on the steps before she slipped on it.
To prove that defendants breached their duty of care to
plaintiff and are responsible for her injuries, plaintiff
proffers the testimony of an engineer.

The engineer contends

that defendants breached their duty of care in two ways:

(1) by

not providing a specific warning to Speed Slide riders to not
leave the mats unattended on the ground, and (2) by not
employing a second guard to collect all the Speed Slide riders’
mats when the ride was very crowded.
Defendants have moved for summary judgment in their favor,
arguing that plaintiff is required to present expert testimony
in order to sustain her negligence claim against them, but
plaintiff’s expert is not qualified under Daubert v. Merrell Dow

2

Plaintiff contends that defendants spoliated evidence by not
retaining more of the surveillance video than only a few seconds
before plaintiff’s fall. The Court will address this issue at a
future time, if necessary.
3

Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Because plaintiff

does not have a qualified expert, defendants argue that her
claims fail as a matter of law.

Plaintiff counters that she

does not need an expert to support her claims, but even if she
does, her expert is properly qualified under Daubert to provide
expert testimony.
During the pendency of defendants’ motion, the New Jersey
Supreme Court issued a decision clarifying the scope of the
“mode-of-operation” principle to slip-and-fall cases in
establishments that encourage self-service on the part of a
customer.

Under the mode-of-operation rule, the typical burden

of proof is shifted from the plaintiff to the defendant, with
the business invitee receiving an inference of negligence
without having to prove that the business owner had actual or
constructive notice of the dangerous condition that caused the
accident.

See Prioleau v. Kentucky Fried Chicken, Inc., 122

A.3d 328, 330 (N.J. 2015).

The parties each submitted

supplemental briefs as to whether the mode-of-operation rule is
applicable to this case.

Plaintiff argues that it is;

defendants argue that it is not.
As discussed below, the Court finds that the mode-ofoperation rule applies to this case, and defendants’ motion for
summary judgment as it is structured now will be denied without
prejudice.

Defendants will be afforded leave to refile their
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motion in the context of the mode-of-operation standard.
DISCUSSION
A.

Jurisdiction

This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1332 because there is complete diversity of citizenship
between the parties and the amount in controversy exceeds
$75,000.00.

As detailed in plaintiff’s amended complaint,

plaintiff is a citizen of Pennsylvania, and defendants are
citizens of New Jersey.
B.

(Docket No. 9.)

Summary Judgment Standard

Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.

Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

In considering a motion for summary
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judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

Once the moving party has

met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.

Id.

Thus, to withstand a properly

supported motion for summary judgment, the nonmoving party must
identify specific facts and affirmative evidence that contradict
those offered by the moving party.
57.

Anderson, 477 U.S. at 256-

A party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague
statements.

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).
C.

Analysis

In the typical case where a business invitee is injured on
a business’s premises, the business is liable in negligence to
the invitee if the invitee proves that the business had actual
or constructive knowledge of the dangerous condition that caused
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the accident.

Prioleau v. Kentucky Fried Chicken, Inc., 122

A.3d 328, 335 (2015) (citations omitted); Bozza v. Vornado,
Inc., 200 A.2d 777, 779 (N.J. 1964) (“[A] proprietor's duty to
his invitee is one of due care under all the circumstances.
Thus, the defendant must use care not to injure plaintiff by
negligent activity.

Where invitees have been injured by a

dangerous condition on the premises of a proprietor, our cases
have stressed the proposition that the proprietor is liable for
injuries to an invitee if he actually knew of the dangerous
condition or if the condition had existed for such a length of
time that he should have known of its presence.”).
The mode-of-operation principle substantially alters that
standard by giving rise to “a rebuttable inference that the
defendant is negligent, and obviates the need for the plaintiff
to prove actual or constructive notice.”
335 (citations omitted).

Prioleau, 122 A.3d at

The mode-of-operation rule was

developed in relation to businesses that require customers to
serve themselves, such as using self-service beverage dispensers
or self-selecting produce from bins.

Id. (discussing Bozza, 200

A.2d at 780 (customer slipped on sticky substance in selfservice cafeteria area); Wollerman v. Grand Union Stores, Inc.,
221 A.2d 513, 514 (N.J. 1966) (customer slipped on a green bean,
which was sold from an open bin on a self-service basis);
Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314, 315 (N.J. 2003)
7

(customer slipped on a grape which was being displayed in an
open-top, vented plastic bag that permitted spillage)).

The

rule was developed out of equitable considerations in
circumstances where, 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, 818 A.2d at 316.

Because the long-standing mode-of-operation rule had been
inappropriately expanded over the years, 3 the New Jersey Supreme
Court in Prioleau reestablished the rule’s narrow scope by
deriving four principles from its survey of cases that have
considered whether the mode-of-operation doctrine applies:
(1) First, the 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. The
distinction drawn by these cases is sensible and practical.
When a business permits its customers to handle products
and equipment, unsupervised by employees, it increases the
risk that a dangerous condition will go undetected and that
patrons will be injured. Thus, the mode-of-operation rule
is not a general rule of premises liability, but a special
application of foreseeability principles in recognition of
the extraordinary risks that arise when a defendant chooses
a customer self-service business model.
3

The New Jersey Supreme Court noted, “The mode-of-operation
charge that has been in use since 1970, Model Jury Charge
(Civil) 5.20F(10), neither reflects recent jurisprudence
regarding the rule nor clearly explains the purpose and
application of the rule. We therefore urge the Model Civil Jury
Charge Committee to review the model charge.” Prioleau v.
Kentucky Fried Chicken, Inc., 122 A.3d 328, 339 (N.J. 2015).
8

(2) Second, the rule applies only to accidents occurring in
areas affected by the business's self-service operations,
which may extend beyond the produce aisle of supermarkets
and other facilities traditionally associated with selfservice activities.
(3) Third, the mode-of-operation rule is not limited to
cases in which customer negligence created the dangerous
condition; it also applies to self-service settings in
which the injury may have resulted from the manner in which
employees handled the business's products or equipment, or
the inherent qualities of the merchandise itself.
Accordingly, the mode-of-operation charge may be given even
in the absence of evidence that the carelessness of the
plaintiff, or another patron, gave rise to the dangerous
condition.
(4) Fourth, if the mode-of-operation rule applies, it
affects the parties' burdens of proof in two respects. The
rule relieves the plaintiff of the burden of proving actual
or constructive notice of the dangerous condition. It also
gives rise to an inference of negligence, shifting the
burden of production to the defendant, who may avoid
liability if it shows that it did all that a reasonably
prudent man would do in the light of the risk of injury the
operation entailed. Thus, if the rule applies in a
particular case, it substantially alters the ordinary
allocation of the burdens between the parties.
Prioleau, 122 A.3d at 338-39 (citations omitted).
In applying these four principles to the case before it,
the New Jersey Supreme Court found that the trial court’s
application of the mode-of-operation rule was in error.
339.

Id. at

There, the plaintiff walked into a fast-food restaurant

from the street, briefly stopped at the counter, and then
proceeded directly to the restroom.

The plaintiff slipped and

fell in the area by the kitchen door and the restrooms.

The

court found that there was no evidence that the location in
9

which the plaintiff’s accident occurred - the section of the
restaurant traversed by plaintiff as she walked from the counter
to the restroom - had the slightest relationship to any selfservice component of the defendants’ business.

Id.

The court

further explained why the mode-of-operation doctrine was
inapplicable:
The theory offered by plaintiff to justify the mode-ofoperation charge, that oil and grease are used in cooking
at the restaurant and that managers regularly examined the
floor, establishes no nexus to customer self-service or
related business operations. If the accident occurred
because restaurant employees tracked oil and grease from
the kitchen to the restroom area, it resulted from the
preparation of food in a kitchen area off limits to
patrons, a component of the business in which customers
played no part. While that evidence might support a
finding that a plaintiff need not show actual or
constructive notice because the condition was created by
defendant or its employees, it does not implicate the modeof-operation rule. Nor does plaintiff's alternative theory
of negligence that patrons tracked water from the outdoors
into the restaurant on a rainy evening bear any
relationship to self-service activities. The potential for
customers to track water into a building during inclement
weather is not contingent on a defendant's business model;
that risk exists in virtually any facility that admits
patrons from public sidewalks or parking areas into its
facility. Thus, plaintiff's second theory of negligence
does not support the jury charge given by the trial court.
Id. (citations omitted).
With these parameters of the mode-of-operation doctrine in
mind, it is evident that the circumstances of this case warrant
the doctrine’s application:
(1)

The business model of the water park is the epitome of

self-service.

For the Speed Slide ride, patrons handle their
10

own mats, walking with them from the corral, up to the top of
the slide, down the slide, through the landing pool, out of the
pool, and down the steps to the walkway.

Until the mat guard

collects the mats from the riders, or the riders themselves
place the mats in the mat corral, the riders maintain control
over the mats.

This model appears to be the same for at least

the Sky Pond ride, for which plaintiff was carrying a double
tube along the pedestrian walk way.
(2)

Plaintiff’s accident occurred in a self-service area.

Plaintiff claims that she slipped on an unattended mat on the
steps of the Speed Slide landing pool.
of their mats in that area.

Patrons are in control

To address defendants’ contention

that plaintiff did not slip on a Speed Slide mat, plaintiff was
still engaged in a self-service activity in a self-service area
by carrying a double tube on route to the Sky Pond ride.
(3)

The dangerous condition was caused by either another

customer who dropped the mat, the mat guard’s inability to
handle the volume of riders, or the inherent quality of the
intended-to-be-slippery mat.

The mode-of-operation rule is

applicable to each of these causes.

To address defendants’

contention that plaintiff did not slip on a Speed Slide mat, the
mode-of-operation rule is applicable even in the absence of
evidence that the carelessness of plaintiff, or another patron,
gave rise to the dangerous condition.
11

It is in the inherent

nature of the business model that requires patrons to handle
bulky and slippery equipment in a crowded and wet environment
that implicates the rule.
(4) The inference of negligence regarding the dangerous
condition at the water park is equitable because, as a matter of
probability, a dangerous condition is likely to occur as a
result of the business’s nature or the property’s condition.
The Court emphasizes that the application of the mode-ofoperation rule to this case does not make “the proprietor an
insurer” for plaintiff’s well-being that requires an automatic
judgment in plaintiff’s favor.
(citation omitted).

See Bozza, 200 A.2d at 780

Moreover, that a water park poses a greater

risk of injury to its patrons than another type of business
simply because of the inherent nature of the business is not
enough, by itself, to impose the mode-of-operation doctrine.
See Prioleau, 122 A.3d at 339 n.6 (disagreeing with the
appellate division dissenting judge’s view that the rule applies
whenever there is a risk of injury inherent in the nature of the
defendant’s operation).

Indeed, like in Prioleau, if plaintiff

fell in the area leading to the restroom, rather than while
engaging in self-service activities, the analysis would be very
different.
The application of the mode-of-operation rule only relieves
plaintiff of having to show actual or constructive notice of the
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dangerous condition.

Nisivoccia, 818 A.2d at 317.

The burden

of production is shifted to defendants, who may avoid liability
if they show that they did “all that a reasonably prudent man
would do in the light of the risk of injury [the] operation
entailed.”

Id. (citation omitted).

“The ultimate burden of

persuasion remains, of course, with the plaintiff.”

Id.

Like patrons who fill their own drinks at the soda
dispenser at a restaurant or select their own grapes or green
beans from an open container in the supermarket, patrons of the
water park serve themselves with the apparatus of the water
park:

patrons retrieve a mat from the storage area, carry it to

the top of the water slide, use it to slide down the slide, and
carry it out of the exit pool, down two stairs, and hand it to
the mat lifeguard or return it to the mat corral themselves.
The patrons at the water park also walk with tubes from one
attraction to another, which is what plaintiff was doing when
she fell.

Accordingly, plaintiff is entitled to an inference of

negligence and is relieved of the obligation to prove that
defendants had actual or constructive notice of the dangerous
condition that caused her accident.

It is now defendants’

burden “to produce proof of performance of their duty of due
care commensurate with the kind and nature of their business,”
including “proof of the measures they took to deal with the
probability that” water park patrons could slip and fall on mats
13

or otherwise injure themselves by virtue of carrying around
their own mats and tubes.

Bozza, 200 A.2d at 780-81.

To that end, defendants are invited to renew their motion
for summary judgment, focusing on their burden under the modeof-operation rule.

In response, plaintiff must identify, by

affidavits or otherwise, specific facts showing that there is a
genuine issue for trial as to defendants’ proof of their
performance of their duty of due care.

If plaintiff plans to

rely upon her proposed expert in opposition to defendants’
motion, the Court cannot issue an advisory opinion at this time
as to whether plaintiff’s expert is qualified to opine on the
sufficiency of defendants’ duty of care. 4

The Court cautions,

however, that the use of an expert requires the expert to follow

4

In her opposition to defendants’ motion for summary judgment,
plaintiff contends that a layperson’s common knowledge is
sufficient to establish the duty of care in this case. It is
important to note, as pointed out by defendants, that because
water parks are strictly regulated, see Carnival–Amusement Rides
Safety Act, N.J.S.A. 5:3–31 to –59, at least one New Jersey
court has determined that expert testimony is required to
establish that a water park breached its duty of care to a
patron who was injured on a water-based amusement when another
patron stepped on her toe. Velasquez v. Land of Make Believe,
No. A-0273-11T3, 2012 WL 986982, at *2 (N.J. Super. Ct. App.
Div. Mar. 26, 2012) (“Contrary to plaintiffs' arguments, jurors
would not be familiar with this comprehensive regulatory scheme.
Permitting plaintiffs to present their lay opinions as to
whether defendants should have operated the park in a particular
fashion would plainly invite jury speculation. Absent an
expert, there would be no proof that defendants' staffing level
at the time of the incident, or the manner in which the
attraction was operated, violated the regulatory requirement.”).
14

the Federal Rules of Evidence Rule 702 and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 (1993).

See Heller

v. Shaw Indus., Inc., 167 F.3d 146, 149 (3d Cir. 1999)
(explaining that under Daubert, expert testimony must be based
only on a reliable and scientifically valid methodology that
fits with the facts of a case, including (1) whether the
methodology can and has been tested; (2) whether the technique
has been subjected to peer review and publication; (3) the known
or potential rate of error of the methodology; and (4) whether
the technique has been generally accepted in the proper
scientific community).
CONCLUSION
Because the Court has determined that the mode-of-operation
principle applies to the circumstances of this case, defendants’
motion for summary judgment in its current form must be denied.
Defendants may refile their motion for summary judgment to
address the mode-of-operation standard.
An appropriate Order will be entered.

Date: December 23, 2015
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

15