BURYCHKA v. BEACHCOMBER CAMPGROUND, INC.
Filing
44
OPINION. Signed by Judge Renee Marie Bumb on 1/31/2020. (dmr)
[Dkt. No. 39]
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, P.C.
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, Esq.; Christopher P. Lagay, Esq.
304 Harper Drive, Suite 201
Moorestown, New Jersey 08057
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
allegedly slipped and fell in a men’s restroom adjacent to the
pool at Defendant’s campground.
On June 14, 2019, this Court
issued an Opinion and Order [Dkt. Nos. 37, 38] denying
Defendant’s Motion for Summary Judgment (the “First MSJ”)[Dkt.
No. 32], without prejudice.
This matter now comes before the
Court upon Defendant’s Renewed Motion for Summary Judgment (the
“Second MSJ”)[Dkt. No. 39].
For the reasons set forth herein,
Defendant’s Renewed Motion for Summary Judgment will be DENIED
and Trial will be SCHEDULED to commence on Tuesday, May 5, 2020
at 10:00am.
I.
FACTUAL AND PROCEDURAL BACKGROUND
As recounted in this Court’s prior Opinion, Plaintiff
arrived at Defendant’s campground in Cape May, New Jersey on the
morning of July 31, 2016, intending to spend a few days with his
brother and his brother’s wife, who were members of the
campground.
Later 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 slipped and fell on a wet floor while proceeding towards the
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urinals.
As a result of his fall, Plaintiff sustained a hip
fracture that ultimately required surgery.
Plaintiff testified at his deposition 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.” See Burychka
Deposition [Dkt. No. 39-5], at 31:11-21.
Plaintiff explained
that in addition to observing that the floor was wet, the side of
his body that hit the floor, including his bathing suit, became
wet from moisture from the floor.
Id. at 40:4-10.
After his fall, Plaintiff was assisted by an unidentified
father and son who found Plaintiff on the bathroom floor.
Thereafter, he received first aid from male Beachcomber security
guard and a female lifeguard, both of whom allegedly filled out
written reports about the incident.
Plaintiff initially declined
an ambulance, but the security guard eventually called an
ambulance after Plaintiff’s pain did not improve after a half
hour of icing his hip.
Plaintiff was transported to Cape
Regional Medical Center, where he was admitted and diagnosed with
fracture to his left hip, which required surgery.
On May 22, 2017, Plaintiff commenced this action against
Defendant, arguing that Defendant breached its duty of care by
failing to maintain the bathroom floor in a safe condition.
On
June 14, 2019, this Court denied Defendant’s First MSJ, without
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prejudice, holding that Plaintiff did not need to prove that
Defendant had constructive notice of the dangerous floor
conditions because the “mode-of-operation” doctrine applied to
this case.
Because the parties had not briefed the mode-of-
operation doctrine in the First MSJ, the Court permitted
Defendant to renew its motion and point to evidence in the record
establishing that Defendant exercised reasonable care to prevent
wet floors in the pool-area bathrooms.
Now, this matter comes
before the Court upon Defendant’s Renewed 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).
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
4
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
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
5
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 the June 14, 2019 Opinion (the “First MSJ Opinion”)[Dkt.
No. 37], the Court found that the “mode-of-operation” doctrine
applied to the facts in this case, creating an inference of
negligence against Defendant which can only be rebutted through a
showing that Defendant took reasonably prudent measures to
prevent the risks posed by wet floors in a bathroom located
adjacent to a pool.
Now, in the Second MSJ, Defendant argues
that the Court incorrectly applied the mode-of-operation doctrine
and that, even if the mode-of-operation doctrines applies, that
Defendant has proven that it took reasonably prudent steps to
ensure the cleanliness and safety of the bathroom facilities.
The Court disagrees with Defendant.
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A.
The “Mode-of-Operation” Doctrine
As explained in the Court’s First MSJ Opinion, the mode-ofoperation rule is a “special application of foreseeability
principles,” developed in response to the inherent risks
associated with “self-service” businesses. See Prioleau v.
Kentucky Fried Chicken, Inc., 223 N.J. 245, 262 (2015).
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.
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 such, the “mode-of-operation” 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
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principle where plaintiff slipped on a misplaced mat at a water
park).
After a finding that the mode-of-operation doctrine
applies, 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.
B.
Applicability of the “Mode-of-Operation” Doctrine
First, Defendant argues that the mode-of-operation principle
is not applicable to the facts in this case.
In doing so,
Defendant effectively moves for reconsideration of the Court’s
First MSJ Opinion, which held as follows:
After reviewing the facts, as presented in the parties’
briefing, this Court finds that the mode-of-operation
doctrine applies to the bathroom and pool area at
Defendant’s campground.
At first glance, Defendant’s
campground may not stand out as an obvious “selfservice” 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.
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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 into the bathrooms and create a slip hazard.
See Lenherr, 153 F.Supp.3d at 668 (internal citations
omitted).
First MSJ Opinion, at 8-10.
In challenging this holding, Defendant argues that the
Court’s application of the mode-of-operations doctrine was a
reversible legal error because “the mode of operations doctrine
has never been expanded beyond the self-serve setting, in which
customers independently handle merchandise without assistance of
employees or may come into direct contact with product displays,
shelving, or packaging.” Second MSJ [Dkt. No. 39-2], at 10.
In support of this argument, Defendant cites to Prioleau, in
which the New Jersey Supreme Court held that the mode-ofoperation rule did not apply when a customer slipped on her way
to the restroom at a fast food restaurant.
In Prioleau, there
was evidence that the floor may have been slippery because
employees had tracked grease from the kitchen or because
customers may have tracked water from outdoors on a rainy
evening. See Prioleau, 223 N.J. at 264. Under those
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circumstances, the court aptly noted that grease from cooking and
water from outdoors had nothing to do with any “self-service”
aspect of the fast food establishment’s business model. Id.
Indeed, neither employees cooking with grease nor guests tracking
water in from outside the restaurant involves any self-service
element.
However, the facts before this Court are quite
different, as Beachcomber is a summer resort, in which allowing
guests open access to pool area and the appropriate bathhouse
facilities (which include showers) is most certainly part of the
business model.
Defendant also argues that the mode-of-operation doctrine
does not apply because Plaintiff was not actively engaged in a
self-service activity at the time of his injury.
On this point,
Defendant cites to Lenherr, in which a guest at a water park
tripped over a misplaced flotation device while carrying a double
tube to another attraction. See Lenherr, 153 F.Supp.3d at 667.
Defendant notes that the court in Lenherr stated “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-ofoperation doctrine... like in Prioleau, if plaintiff fell in the
area leading to the restroom, rather than while engaging in self-
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service activities, the analysis would be very different.” Id. at
667-668.
Based on the language from Lenherr, Defendant argues that
there is no nexus between Plaintiff’s injury and any self-service
aspect of Defendant’s business.
Notably, Defendant argues that
Plaintiff had not even gone in the pool before entering the
bathroom “and thus, not availed himself of any self-service
activity.” See Second MSJ, at 11. The Court disagrees with this
assessment.
The Court rejects the notion that a plaintiff must be
“actively engaged” in the self-service aspect of the business to
benefit from the mode-of-operation principle.
Under the
interpretation proposed by Defendant, the mode-of-operation
doctrine would not, for example, apply to a customer who slipped
on a restaurant’s wet floor, caused by spillage from a selfservice soda fountain, if that customer was not using the soda
fountain. Such a result would be absurd.
In this Court’s view,
the mode-of-operation principle does not require that individual
be actively engaged in a self-service activity when they were
injured, rather it requires that the individual was injured due
to a risk created by a self-service aspect of the business.
In this case, there were two distinctly self-service aspects
of Defendant’s business that could have caused wet floors in the
bathhouse: (1) the pool and lake directly adjacent to the
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bathroom; and (2) the availability of public showers directly
within the bathroom.
Given the proximity to the pool and the
lake, there is a reasonable probability that guests will track
water onto the floor.
There is also a strong likelihood guests
who use one of the publicly available showers will track water
across the bathroom, leaving the floor wet for other guests.
As
such, the Court stands by its previous determination that
Plaintiff is entitled to an inference of negligence against
Defendant under the mode-of-operation doctrine.
C.
Defendant’s Alleged Exercise of Due Care
Next, Defendant argues that it even if the mode-of-operation
doctrine applies, that Defendant has demonstrated that the
campground exercised reasonable care in maintaining the safety of
the bathroom floors.
In support of this assertion, Defendant
references the measures set forth by Ken Gomez, one of the
campground’s owners, in his deposition, where he explained that
the bathrooms are generally inspected approximately five times
per day and are also occasionally cleaned with hot water and then
a dry mop, with “wet floor” caution signs displayed after
mopping.
Given that this Court has applied the mode-of-operation
doctrine, it is not the Plaintiff’s burden to establish
negligence, rather the burden is on Defendant to demonstrate that
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it did
“all that a reasonably prudent man would do in the light
of the risk of injury [the] operation entailed.” Nisivoccia, 175
N.J. at 565.
Whether Defendant’s measures were enough is a
question for a jury.
Indeed, a reasonable jury could also find
that Defendant failed to take reasonable measures to prevent
slips because the bathroom had tile floors, no permanent warning
signs about wet floors, and no logs were kept of daily
inspections or cleanings.
The Court cannot resolve this disputed
issue of material fact.
IV.
CONCLUSION
For the foregoing reasons, Defendant’s Renewed Motion for
Summary Judgment will be DENIED and Trial will be SCHEDULED to
commence on Tuesday, May 5, 2020 at 10:00am.
An appropriate
Order shall issue on this date.
DATED: January 31, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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