BURYCHKA v. BEACHCOMBER CAMPGROUND, INC.

Filing 37

OPINION. Signed by Judge Renee Marie Bumb on 6/14/2019. (rss, )

[Dkt. No. 32]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

JOHNE BURYCHKA,
Plaintiff,

Civil No. 17-3627(RMB/KMW)
v.

OPINION

BEACHCOMBER CAMPGROUND, INC.,
Defendant.

APPEARANCES:
ROSENBAUM & ASSOCIATES
By: John F. Hanahan, Esq.
5 Split Rock Drive
Cherry Hill, New Jersey 08003
Counsel for Plaintiff Johne Burychka
CONNOR WEBER & OBERLIES, P.C.
By: Michael S. Mikulski, II
Woodcrest Pavilion
Ten Melrose Avenue, Suite 450
Cherry Hill, New Jersey 08003
Counsel for Defendant Beachcomber Campground, Inc.

RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff Johne Burychka (“Plaintiff”) brings this personal
injury action against Defendant Beachcomber Campground, Inc.
(“Defendant”) based on injuries sustained when Plaintiff slipped
and fell on an allegedly wet surface in the men’s restroom near
the pool at Defendant’s campground.

This matter now comes before

the Court upon Defendant’s Motion for Summary Judgment [Dkt. No.
32].

For the reasons set forth herein, Defendant’s Motion for

Summary Judgment shall be DENIED WITHOUT PREJUDICE, however, this
Court shall permit Defendant to refile its motion as indicated in
this Opinion.

I.

FACTUAL AND PROCEDURAL BACKGROUND
On the morning of July 31, 2016, Plaintiff visited

Defendant’s Beachcomber Campground in Cape May, New Jersey,
intending to spend a few days with his brother and his brother’s
wife, who were members of the campground.

That morning,

Plaintiff and his brother spent about an hour lounging by the
pool.

At approximately 12:30 p.m., Plaintiff went to use the

bathroom facilities adjacent to the pool.

Upon entering the

men’s restroom, Plaintiff alleges that he immediately slipped and
fell on a wet floor.

As a result of his fall, Plaintiff alleges

that he sustained a hip fracture that required surgery.

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Plaintiff contends that he did not notice any “standing
water” on the floor when he entered the bathroom, but that after
his fall, he observed that the tile floor was visibly wet “as if
the floor was recently mopped.”

After his fall, Plaintiff claims

that he was assisted by a security guard and a lifeguard, both of
whom allegedly filled out written reports about the incident.
Although Plaintiff initially declined an ambulance, after
Plaintiff’s pain did not subside, an ambulance was eventually
called to assist Plaintiff.
On May 22, 2017, Plaintiff commenced this action against
Defendant, arguing that Defendant is responsible for the injuries
suffered when he slipped on the bathroom floor.

Specifically,

Plaintiff alleges that Defendant breached its duty of care by
failing to maintain the bathroom floor in a safe condition.

Now,

this matter comes before the Court upon Defendant’s Motion for
Summary Judgment.

II.

LEGAL STANDARD
Summary judgment shall be granted 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 fact is “material” only if it might impact the

“outcome of the suit under the governing law.” Gonzalez v. Sec’y
of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012).
3

A

dispute is “genuine” if the evidence would allow a reasonable
jury to find for the nonmoving party. Id.
In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable inferences and doubts should be resolved in favor of
the nonmoving party. Melrose, Inc. v. City of Pittsburgh, 613
F.3d 380, 387 (3d Cir. 2010).

However, a mere “scintilla of

evidence,” without more, will not give rise to a genuine dispute
for trial. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
2001).

Moreover, a court need not adopt the version of facts

asserted by the nonmoving party if those facts are “utterly
discredited by the record [so] that no reasonable jury” could
believe them. Scott v. Harris, 550 U.S. 372, 380 (2007).

In the

face of such evidence, summary judgment is still appropriate
“where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party.” Walsh v. Krantz,
386 F.App’x 334, 338 (3d Cir. 2010).
The movant has the initial burden of showing through the
pleadings, depositions, answers to interrogatories, admissions on
file, and any affidavits “that the non-movant has failed to
establish one or more essential elements of its case.” Connection
Training Servs. v. City of Phila., 358 F. App’x 315, 318 (3d Cir.
2009).

“If the moving party meets its burden, the burden then

shifts to the non-movant to establish that summary judgment is
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inappropriate.” Id.

In the face of a properly supported motion

for summary judgment, the nonmovant’s burden is rigorous: he
“must point to concrete evidence in the record”; mere
allegations, conclusions, conjecture, and speculation will not
defeat summary judgment. Orsatti v. New Jersey State Police, 71
F.3d 480, 484 (3d Cir. 1995); accord. Jackson v. Danberg, 594
F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC. v. Advanced
Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir.
2009)(“[S]peculation and conjecture may not defeat summary
judgment.”).

Moreover, “the court need only determine if the

nonmoving party can produce admissible evidence regarding a
disputed issue of material fact at trial”; the evidence does not
need to be in admissible form at the time of summary judgment.
FOP v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016).

III. ANALYSIS
In its Motion for Summary Judgment, Defendant argues that
Plaintiff’s Complaint must be dismissed because Plaintiff has
failed to produce any evidence to establish that Defendant had
actual or constructive notice of the wet floor in the bathroom.
In response, Plaintiff argues that Defendant has committed
spoliation of evidence by failing to preserve and produce the
incident reports allegedly created by the lifeguard and security
guard who assisted Plaintiff after his fall.
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Thus, Plaintiff

argues that he is entitled to an adverse inference against
Defendant.

The Court finds both parties’ arguments unpersuasive.

As the parties failed to address the “mode-of-operation”
doctrine, which this Court finds is applicable, the Court will
deny the Motion for Summary Judgment.
A.

Mode-of-Operation Doctrine

In the typical case where a business invitee is injured on a
business’s premises, the business is liable for negligence to the
invitee if the invitee proves that the business 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)(internal citations omitted).

In Bozza v. Vornado,

Inc., 42 N.J. 355, 359 (1964), the Supreme Court of New Jersey
explained the standard as follows:
“Generally, 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.” Id.
Although Plaintiff has failed to cite facts that demonstrate
Defendant’s actual or constructive knowledge of the wet bathroom
floor, this Court finds that such facts are unnecessary because
the “mode-of-operation” doctrine applies to the pool and bathroom

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areas of Defendant’s property.

Under the mode-of-operation

doctrine, a plaintiff is relieved of the obligation to prove
actual or constructive notice of a dangerous condition when, “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 v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003).
As recognized by other courts in this district, the mode-ofoperation principle “substantially alters” the premises liability
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.” See Lenherr v. Morey
Org., Inc., 153 F.Supp.3d 662, 665 (D.N.J. 2015)(applying the
mode-of-operation principle to a case in which plaintiff slipped
on a misplaced mat at a water park).

In turn, the inference of

negligence shifts the burden to the defendant, who can “negate
the inference by submitting evidence of due care.” Nisivoccia,
175 N.J. at 564.

This means that the defendant 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. at 565.
The mode-of-operation rule is a “special application of
foreseeability principles,” developed in response to the inherent
risks associated with “self-service” businesses. See Prioleau,
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223 N.J. at 262.

Generally, the self-service setting has been

described as an environment “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.” Id.

For example, courts have applied the mode-of-

operation principle to businesses that require customers to serve
themselves, by filling up drinks from self-service beverage
dispensers or hand-picking produce from bins at the grocery
store. Id.

However, this principle has also been applied to the

risks created by regular guest activity at a water park. See
Lenherr, 153 F.Supp.3d at 668 (“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.”).
After reviewing the facts, as presented in the parties’
briefing, this Court finds that the mode-of-operation doctrine
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applies to the bathroom and pool area at Defendant’s campground.
At first glance, Defendant’s campground may not stand out as an
obvious “self-service” business.

However, any guest’s

independent use of a business’s pool is inherently self-service.
Although lifeguards may be stationed nearby to observe or
intervene, guests generally enter and exit a pool without
assistance.

Naturally, these guests have wet clothing when they

exit the pool and will track water with them to facilities
positioned nearby for guest use.

Common sense dictates that

there is a substantial likelihood that guests will track water
into bathrooms positioned near a pool, resulting in slippery and
wet floors.

In this instance, it is irrelevant how the

bathroom’s tile floor got wet (either by a guest tracking in
water or by an employee mopping the floor).

Dangerous conditions

due to slippery and wet floors are reasonably likely to occur in
a bathroom near a pool.
Accordingly, this Court finds that Plaintiff is entitled to
an inference of negligence and is relieved of the obligation to
prove that Defendant had actual or constructive notice of the
dangerous condition that caused Plaintiff’s accident. It is now
Defendant’s 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” guests at the pool could track water
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into the bathrooms and create a slip hazard. See Lenherr, 153
F.Supp.3d at 668 (internal citations omitted).
In the briefing on the Motion for Summary Judgment, neither
party addressed the mode-of-operation doctrine.
Court must deny the Motion for Summary Judgment.

As such, the
However,

Defendant is invited to renew its Motion for Summary Judgment and
set forth facts sufficient to meet its burden of production under
the mode-of-operation rule.

In response, Plaintiff must identify

specific facts showing that there is a genuine issue for trial
whether Defendant performed of its duty of due care.
B.

Spoliation of Evidence

In response to Defendant’s motion, Plaintiff argues that he
is entitled to an adverse inference against Defendant due to
spoliation of evidence.

Specifically, Plaintiff claims that

Defendant failed to preserve and/or produce incident reports
allegedly filled out by the security guard and lifeguard who
assisted him following his accident.

Plaintiff argues that these

reports would have detailed “what transpired” concerning
Plaintiff’s fall and would have revealed the identity of
witnesses and those who prepared the reports.

Without that

information, Plaintiff argues that he has been unable to fully
identify relevant witnesses and collect information.
In setting forth his argument, Plaintiff “assumes” the
existence of the alleged incident reports based on statements by
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Kenneth Gomez, the owner of the campground, that incident reports
prepared in connection injuries requiring an ambulance are
“supposed to be” stored in Defendant’s computer system for later
retrieval.

However, by Plaintiff’s own admission, there is no

evidence that any reports were ever saved to the system.
Furthermore, although the security guard and lifeguard were
“supposed to” fill out incident reports, there is no evidence
that they did so other than Plaintiff’s vague assertion that he
saw them write down information while they assisted him.

Even if

these reports existed, there is no evidence that they would have
included the information alleged by Plaintiff.
To the extent Plaintiff argues that these incident reports
exist and were never produced, or that Plaintiff was unable to
identify and depose the relevant employees because Defendant
refused to provide proper documentation, such arguments do not
pertain to spoliation.

Rather, those issues should have been

raised before the Magistrate Judge during the discovery process,
which is now closed.
Based on the vague facts and allegations set forth by
Plaintiff, this Court cannot determine whether spoliation of
evidence occurred.

Regardless, Plaintiff’s argument is a moot

point because this Court is already making an adverse inference
against Defendant based on the mode-of-operation doctrine.

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IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary

Judgment will be DENIED WITHOUT PREJUDICE.

Defendant shall be

afforded fourteen (14) days to file a renewed motion for summary
judgment addressing the issues set forth in this Opinion.1

An

appropriate Order shall issue on this date.

DATED: June 14, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

1

The Court notes that Defendant’s Statement of Facts was
contained within its summary judgment brief and, therefore,
failed to formally comply with Local Rule 56.1, which requires
the movant to furnish a statement of material facts as “a
separate document (not part of a brief).” See L. Civ. R. 56.1(a).
If Defendant chooses to file a renewed motion for summary
judgment, the parties are instructed to comply with Local Rule
56.1, as it pertains to both the initial filing and responsive
briefs.
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