CUZCO v. WAL-MART STORES, INC

Filing 57

OPINION. Signed by Judge Evelyn Padin on 9/19/2022. (dam)

Case 2:17-cv-07125-EP-CLW Document 57 Filed 09/19/22 Page 1 of 11 PageID: 120
NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROSA CUZCO,
Case No. 17-07125 (EP) (CLW)
Plaintiff,

OPINION

v.
WAL-MART STORES, INC., JOHN
DOES 1-10 (said names being
fictitious), and XYZ CORPORATIONS
1-10 (said names being fictitious),
Defendants.

PADIN, District Judge.
This case concerns a slip and fall in New Jersey. Currently pending is Defendant Walmotion for summary judgment pursuant to Fed. R. Civ. P. 56. The
Court decides this matter on the papers pursuant to Fed. R. Civ. P. 78 and L.Civ.R.78.1(b). For

I.

BACKGROUND
In September 2016, Cuzco visited a Walmart store located in Watchung, New Jersey. D.E.
1-

As she turned the corner out of an aisle, Cuzco slipped on a puddle of fabric

softener, roughly

-cap,

1

and fell. D.E. 47-

Surveillance video camera footage captured the events. See D.E. 47parties do not dispute, and the footage confirms, the following:

1

An end-cap is the short section at the end of an aisle containing featured items. See D.E. 48-1 at 30:1-11.

.

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6:13:26 P.M. Two Walmart customers, one male (blue shirt) and one female (pink
shirt), are standing at an end-cap where fabric softener containers are on display.
This particular end-cap is near at least four cash registers, where Walmart
employees can be seen assisting customers who were checking out. No other
Walmart employees are visible in the footage frame.
6:13:34 P.M. The male customer (blue shirt) picks up a fabric softener container
from the end-cap and takes a few steps towards an adjacent end-cap.
6:13:40 P.M.
the fabric so

The male (blue shirt) and female (pink shirt) customers realize that

6:14:00 P.M. The male customer (blue shirt) walks back to the end-cap containing
the other fabric softener containers, places the leaking container back on the shelf,
and picks up a replacement.
6:14:13 P.M. The male (blue shirt) and female (pink shirt) customers walk away
from the area.
6:15:20 P.M. Cuzco turns the corner out of an aisle, slips on the spilled fabric
softener, and falls.
Cuzco sued Walmart for negligence in New Jersey Superior Court. Compl. at 1. Walmart
removed the case to this Court. D.E. 1. With fact discovery now complete, Walmart moves for
summary judgment. D.E. 47.
II.

STANDARD OF REVIEW

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude the Court from granting a motion
for summary judgment. See id.
The party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Conoshenti v. Pub. Serv. Elec. & Gas Co., 364

2

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F.3d 136, 145-46 (3d Cir. 2004). The moving party must support its motion by citing to specific
materials in the record. Fed. R. Civ. P. 56(c)(1)(A). Once the moving party has adequately

her own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
Celotex Corp., 477 U.S. at
324 (internal quotation marks omitted). The nonmoving party must identify specific facts and
affirmative evidence that contradict the moving party. Anderson, 477 U.S. at 250. The nonmoving

Thimons v. PNC Bank, NA
2007) (citation omitted). Where
Messa v. Omaha Prop. & Cas.
Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50). But

inappropriate. Anderson, 477 U.S. at 250-51.
In reviewing a motion for summary judgment, the Cou

Marina v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255). But if

d
summary judgment is appropriate. Celotex Corp., 477 U.S. at 322.

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III.

DISCUSSION

care owed by the defendant to the plaintiff, a breach of that duty by the defendant, injury to the
Garcia v. Walmart, Inc., 2021 WL
754006, at *3-4 (D.N.J. Feb. 26, 2021) (quoting Shields v. Ramslee Motors, 240 N.J. 479, 487
(N.J. 2020)) (internal citation and quotation marks omitted).
duty of reasonable or due care to provide a safe environment for doing that which is within the
Id. at *4 (quoting Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563
(2003)) (quotation m

asserting a breach of that duty must prove,

as an element of the cause of action, that the defendant had actual or constructive knowledge of
Id. (quoting Nisivoccia, 175 N.J. at 563). But
where the mode-of-operation doctrine applies, the plaintiff is relieved of her burden of showing
that the defendant had actual or constructive notice of the dangerous condition. See Prioleau v.
Ky. Fried Chicken, Inc., 223 N.J. 245, 258 (2015) (citation omitted).
A.

Mode-of-Operation Doctrine
The mode-ofrable
Nisivoccia, 175 N.J. at 563. Specifically relevant here, when the
the carelessness of either customers or

employees.

Id. at 564
Prioleau, 223 N.J. at 262. As a result of the increased

risk, there aris

, shifting the burden of production to the defendant,

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reasonably prudent man would do in the
light of the risk of injury [the] operation entailed.

Id. at 263 (quoting Nisivoccia, 175 N.J. at

564-65) (citation omitted).
But the mode-of-

is limited. See id. at 254 (citation

omitted).

Id. at 262. That nexus

depends, not on

but on whether

[defendan

operation] encourages self-service on the part of the customer, which can reasonably and
Id. (citation omitted). In other words, did the
defendant engage in a particular business practice that created an implicit or inherent danger likely
to cause injury? See id.
The New Jersey Supreme Court has applied the doctrine to injuries occurring when a
plaintiff slipped on: (1) a grape near an area of a supermarket that displayed produce in open-top
bags, Nisivoccia, 175 N.J. at 565; (2) a green bean in a produce aisle with open bins, Wollerman
v. Grand Union Stores, Inc., 47 N.J. 426, 428-29 (1966); and (3) a sticky substance in a cafeteria,
Bozza v. Vornado, Inc., 42 N.J. 355, 360 (1964). Teixeira v. Walmart Stores, Inc., 2021 WL
4272828, at *7 (Sept. 16, 2021). In these

spilling or dropping sli

Id.

(citation omitted).
In contrast, New Jersey courts have not applied the doctrine where a plaintiff slipped on:
(1) a grape near an area of a supermarket that displayed produce in pre-packaged sealed containers,
, 250 N.J. 240, 244-45 (2022); (2) water tracked in from outside of a fast-food

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restaurant, Prioleau, 233 N.J. at 265; and (3) liquid from a refrigerator display near the checkout
area where the liquid was sold in a sealed container, Knight v. Family Dollar Stores, Inc., 2022
3905917 , at *20-21 (App. Div. 2022). In these cases, the New Jersey courts found that there was

See id.
This case falls squarely into the latter category of cases where New Jersey courts have
found that the mode-of-operation doctrine does not apply. While it is true that Walmart customers
are expected to serve themselves, specifically by selecting sealed containers from the shelves and

dispense the c

Teixeira, 2021 WL 4272828, at * 7-8. Cuzco allegedly

slipped on liquid from a leaking fabric softener container. Nothing about the presence of liquid is
itting customers to select the
containers themselves. To properly invoke the mode-of-operation doctrine, Cuzco would need to
e.g., a particular practice, created
a particular risk that liquids would leak from the containers and end up on the floor of the store.
She has not.
Instead, Cuzco makes two non-outcome determinative claims. First, the location of the
leaking fabric softener container

-

created an increased risk to customers. In

Betancourt and Knight, the respective plaintiffs slipped and fell on spilled liquid between the cash
register and the exit door. See Betancourt v. Home Depot U.S.A., Inc., 2018 WL 3954854, at *13
(D.N.J. Aug. 16, 2018); Knight, 2022 WL 3905917, at *2. Both courts held that the mode-ofoperation doctrine did not apply because spillage near a cash register was insufficient to show that
a specific business practice made the dangerous condition foreseeable. See Betancourt, 2018 WL

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3954854, at *8-11; see also Knight, 2022 WL 3905917, at *19-20. Here, the fact that the leaking
fabric softener

-

placed certain items in high-visibility locations to encourage customers to purchase those items.
-

is not indicative of an invitation by Walmart for

customers to open the seal on a fabric softener container. See Layden v. Target Corp., 768 F.
hat the plaintiff had not identified any aspect of the
invited removal so that a substantial risk of injury
(quotation marks and citations omitted) (emphasis in
original); see also Teixeira, 2021 WL 4272828
application of the mode-ofof merchandise in closed containers on shelves that are accessible to shoppers. Something more,
such as a particular risk of spilling as a result of selfassistant manager was aware that customers
sometimes opened sealed fabric softener containers. D.E. 48 at 6. Both in Jeter and Knight, the
courts rejected the argument that the store knew its customers occasionally opened sealed
containers while in the store because the store sold the items at issue
posed no foreseeable risk
at *19-20

See 2022 WL 3905917,
assistant manager was aware that customers sometimes

opened sealed fabric softener con
practice to permit customers to open sealed fabric softener containers while in the store. See id. at
*20-

rs did spill

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seen patrons open the beverages at the register, or whether the slip and fall accidents he witnessed
-serve beverages opened at

Precedent and common sense lead the Court to conclude that the mode-of-operation
doctrine does not apply here.
B.

Constructive Notice
Because Cuzco cannot avail herself of the mode-of-operation doctrine, she must show that

Walmart had actual or constructive notice of the spilled fabric softener. Garcia, 2021 WL 754006,
at *9 (citation omitted).
the dangerous condition or if the condition had existed for such a length of time that he should
Bozza, 42 N.J. at 359. Cuzco does not claim that Walmart had actual
notice of the spill, nor that a Walmart employee caused the spill. Instead, she claims that Walmart
had constructive notice of the spill.
A defendant has constructive notice when the condition existed for such a length of time
as reasonably to have resulted in knowledge and correction had the defendant been reasonably
diligent.

Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 596, 602 (App.

Div. 2016) (quoting Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div.
1957)).
Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013) (internal citation
and quotation marks omitted). And while a business owes a duty of ordinary care to its invitees,
Znoski v. Shop-Rite Supermarkets, Inc., 122 N.J.
Super. 243, 248 (App. Div. 1973).

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Typically, constructive notice is a question of fact for the jury, but it may be appropriate
for summary judgment when no reasonable juror could conclude otherwise. See Melendez v.
Target Corp., 2022 WL 1617709, at *22 (citation omitted). In most cases, the length of time that
the dangerous condition was present is key to determining whether constructive notice existed.
Garcia, 2021 WL 754006, at *10. But a plaintiff who can point to other factors that should have
made the defendant aware of the dangerous condition can also suffice. See, e.g., Bezglasnaya v.
Trump Ent. Resorts, Inc., 2013 WL 796308, at *4 (D.N.J. Mar. 4, 2013) (denying summary
judgment and concluding that the plaintiff had presented a fact question as to whether the
defendant had constructive notice of a dangerous condition when employees were working nearby
and a hostess walked by the location where the fall occurred).
There is no bright-line rule as to how much time is sufficient to create an issue as to
Garcia, 2021
WL 754006, at *5 (citing McCracken v. Target Corp., 2011 WL 1466075 (D.N.J. Apr. 18, 2011)).
But at least one court has found that four minutes is too short to infer constructive notice, Bowman
v. Walmart Stores E., LP, 2015 WL 568570, at *6 (E.D. Pa. Feb. 10, 2015), while another court
has

d with the video surveillance of the area

and the fact that [an employee] was [lingering]

Romeo

, 168 F. Supp. 3d 726, 732 (D.N.J. 2016).
In McCracken

the

plaintiff slipped and fell in an area near

he

primary entrance of the store only three minutes after the spill allegedly occurred. See 2011 WL

monitored the floor to ensure that it was clear of hazards on a minute-by-

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customers, and the likelihood that customers would stop at the shopping carts and baskets and
unload personal items or m

Id.

Here, a few of the undisputed facts seem to favor finding that Walmart did not have
constructive notice. Video camera surveillance footage shows that approximately two minutes
before Cuzco slipped and fell, another Walmart customer picked up a fabric softener container
from an end-cap nearby, walked a few steps toward another customer at an adjacent end-cap,
realized the container was leaking, walked back to the end-cap with the other fabric softener
containers, placed the leaking container back on the endStmt. at 1-2. Approximately two minutes later, Cuzco unsuspectingly walked toward the area
where the liquid had been spilled and slipped and fell. Id. at 2. The footage also shows that there
were at least four cash registers with Walmart employees near the end-cap where Cuzco fell. See
Video at 6:13:00-6:15:30. All of the Walmart employees at the nearby cash registers were assisting
customers who were checking out. See id. No other Walmart employee can be seen in the vicinity
of the spill until after Cuzco fell. See id.
On the other hand, three relevant facts counsel against finding that Walmart did not have
constructive notice as a matter of law. First,

that items

featured on end-caps

-1 at 15:23-16:6.

It follows that a jury could
-caps, then these sections are also likely to have higher consumer traffic. See
McCracken, 2011 WL 1466075, at *3 (emphasizing that the more traffic, the more a business is
on notice that it needs to maintain the area).

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Second,

that safety sweeps,

2

which are typically

done every half-hour to an hour, may be done more frequently in sections known to have high
traffic, like the food section. D.E. 48-1 at 17:12-24, 21:16-22:14. If a jury were to find that endcap sections have higher consumer traffic, like the food section, then it would also be reasonable
for a jury to find that safety sweeps should be conducted with greater frequency near end-cap
sections. See McCracken, 2011 WL 1466075, at *3.
Third, the type of item at issue, fabric softener, is prone to spills. Here, like in Garcia, it
would take only one leaky container to create a slip-and-fall hazard. See Garcia, 2021 WL 754006,
at *12 (concluding that a jury could find that items in the hair care aisle pose risks that warrant
additional checks from employees because they are slippery liquids that are prone to spills). A
jury could reasonably find that because fabric softener is a type of item prone to spills that
additional safety sweeps in the area were warranted.
Taken together, the Court concludes that the three facts described above contribute to a
triable issue. Accordingly, the evidence in the record is sufficient to raise a genuine, material issue
of fact as to whether Walmart had constructive notice of the fabric softener spill.
IV.

CONCLUSION
For the reasons stated herein,
appropriate Order accompanies this Opinion.

Dated: September 19, 2022

_______________________
Hon. Evelyn Padin, U.S.D.J.

2

on the ground or it can entail a maintenance associate walking around picking things up off the ground that might
have fallen or broken
-1 at 17:25-18:1-6.

11