PENA v. WALMART, INC.

Filing 41

OPINION. Signed by Judge William J. Martini on 11/29/22. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSE
TALIAPENA,
Plaintiff,

Civ. No. 2:19-cv-17896 (WJM)

V.

WALMART STORES, INC., JOSHUA

OPINION

STRUDL, "JANE DOE CUSTOMER,"
"JOHN DOE," "JANE DOE," AND "XYZ

CORP.," (FICTITIOUS NAMES),
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Presently pending in this personal injury action is a motion by Defendant Walmart,
Inc. ("Walmart" or "Defendant ) for summary judgment pursuant to Fed. R. Civ. P. 56.
ECF No. 37. For the reasons set forth below. Defendants motion for summary judgment
is granted.

I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Talia Pena ("Plaintiff) alleges that on January 13, 2018, she was struck by
an unidentified customer operating a motorized shopping cart while she was shopping at
Walmart located in Secaucus,NJ. Def/s Stmt. Of Undisputed Material Facts ("DSUMF"),
^[ 4-5, ECF No. 37-1. Plaintiff claims that as she was bent over smelling body sprays on a
bottom shell "right before the self checkout lanes," an unidentified female customer drove
a motonzed cart into her because the woman had paper products stacked so high in the cart

that she could not see in front of her. PL'S Stmt. Of Material Undisputed Facts (PSUMF),
1[ 3; Pl. Dep. Tr. at 20:17-21, 25:24-26:4, 48:7-9, PSUMF Ex. A, ECF No. 39.
This negligence action was initially filed in state court and on September 11, 2019,
removed to federal court based on diversity jurisdiction under 28 U.S.C. § 1332. ECF No.
1. Moving for summary judgment. Defendant argues that the mode of operation rule does
not apply and therefore. Plaintiff must, but cannot, demonstrate actual or constructive
notice of the dangerous condition at issue in this litigation. The Court agrees.
II.

STANDARD AND BURDEN OF PROOF
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper

when "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," "A fact is 'material'... if its existence
or nonexistence might impact the outcome of the suit under the applicable substantive law."
Safifini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting Anderson v. Liberty Lobby,
Inc.,477 US. 242,248 (1986)). "A dispute over a material fact is 'genuine' if'a reasonable
jury could return a verdict for the nonmoving party.'" Id. (quoting Anderson, 477 U.S. at
248). After making all reasonable inferences in the nonmoving party's favor, there is a
genuine issue of material fact if a reasonable jury could find for the nonmoving party."

Pigmtaro v. PortAuth of New York & New Jersey, 593 F.3d 265, 268 (3d Cir. 2010). The
Court s role at the summary judgment stage "Is 'not ... to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.'" Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir, 2019) (quoting
Anderson, 477 U.S. at 249).
The party moving for summary judgment bears the initial burden of showing the
basis for its motion and identifying those portions of the record which it believes
demonstrate the absence of a genuine issue of material fact. Celoiex Corp. v. Catrett, 477

U.S. 317, 323 (1986). If the moving party meets its burden, the burden then shifts to the
non-moving party to "come forward with specific facts showing that there is a gennme
issue for tried and do more than simply show that there is some metaphysical doubt as to
the material facts." United States v. Donovcm, 661 F.3d 174, 185 (3d Cir. 2011) (quoting
Mat.sushitaEl.ec. Indus. Co. v. ZenithRadio Corp., 475 US. 574,586-87 (1986)) (emphasis
in original and internal quotation marks omitted). "[UJnsupported assertions, speculation,
or conclusory allegations" are insufficient to defeat a summary judgment motion.
Longstreet v. Holy Spirit Hosp., 67 F. App'x 123, 126 (3d. Cir. 2003). "[T]here must be
evidence on which the jury could reasonably find for the [non-movant]." Anderson^ 477
U.S. at 252.

III. DISCUSSION
A. Mode of Operation Rule
Generally, under New Jersey law, "[b]usiness owners owe to invitees a duty of
reasonable or due care to provide a safe environment for doing that which is within the
scope of the invitation. ^Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). "The
duty of due care requires a business owner to discover and eliminate dangerous conditions,
to maintain the premises in safe condition, and to avoid creating conditions that would
render the premises unsafe." Id. To hold a business owner liable, a plaintiff ordinarily must
demonstrate that "the defendant had actual or constructive knowledge of the dangerous
condition that caused the accident." Id.
However, a plaintiff need not prove actual or constructive notice under the "mode
of operation" rule, which applies "when a substantial risk of injury is inherent in a business
operator's method of doing business. Id. at 564. To invoke that rule, the plaintiff must
show there was a "reasonable probability" that the dangerous condition would occur "as

2

the result of the nature of the business, the property's condition, or a demonstrable pattern
of conduct or incidents." Id, at 563; Bozza v. Vornado, Inc.^ 42 NJ. 355, 360 (1964); see
also Layden v. Target Corp., 768 Fed. Appx. 152, 157 (3d Cir. 2019). In that instance, a
plaintiff is afforded 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." Nisivoccia, 175 NJ. at 563-64.
In "recognition of the extraordinary risks that arise when a defendant chooses a
customer self-service business model," the mode of operation rule has only been applied
to self-service or similar settings where "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." Prioleau v.

Kentucfy Fried Chicken, Inc., 223 NJ. 245, 262 (2015). While "the rule applies only to
accidents occurring in areas affected by the business s self-service operations," that area
"may extend beyond the produce aisle of supermarkets and other facilities traditionally
associated with self-service activities." Id. Finally, the mode of operation rule is not limited
to situations in which a customer's negligence creates a dangerous condition; it is also
applicable 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," Id. at 263.
Generally, merely providing shopping carts as a self-service equipment does not
alone increase the risk of a dangerous condition to warrant application of the mode of
operation rule. See Znoski v. Shop-RUe Supermarkets, Inc., 122 N.J. Super. 243, 247-48

(App. Div. 1973) (concluding that mode of operation rule did not apply where unknown
perpetrator struck plaintiff with shopping cart on store property because there was no

"substantial risk of injury [] implicit, or inherent, in the furnishing of shopping carts to
patrons by a store proprietor. Shopping carts are not dangerous instrumentalities, and they
are uniquely suitable for the purpose for which furnished."); see also e.g., Yaknp v. VUL
Supermarkets Inc., No. A-3327-18T2, 2020 WL 1987049, at ^3 (N.J. Super. Ct. App. Div.
Apr. 27, 2020) (holding mode of operation rule inapplicable because "mere provision of
shopping carts for use by customers via a self-service cart corral does not raise a substantial
risk inherent in defendant's mode of doing business"). Brooks v. Wal-Mart Stores, Inc., 854

Fed. App'x 422 (2021) (finding lack of inherently dangerous condition negated court's
need to apply mode of operation doctrine where patron struck foot on protruding bench
while attempting to maneuver around two unattended shopping carts partially blocking

path).
Rather, application of the mode of operation rule requires that some aspect of the
store's self-service operation created a substantial risk of injury. See e.g., Meade v. Kings

Supermarket-Orcmge^ 71 N.J. 539 (1976) (finding reliance on Znoski misplaced because
plaintiffs were injured by "youngster" riding shopping cart down a ramp with defective
design, construction, and obstruction of vision created by wall); Klarman v. Pathmark

Supermarket, No. A-2169-14T1, 2018 WL 6729704 (NJ. App. Div. Dec. 24, 2018)
(applying mode of operation rule where shopping carts remained outside and store had no
policy for removal of accumulated snow before allowing customers to bring snow laden
carts inside); Wollerman v. Grand Union Stores, Inc., 47 NJ. 426, 429 (1966) (allowing
inference of negligence where in usual course of business, greens sold from open bins on
self-service basis created "likelihood that some will fall or be dropped to the floor");

compare Jeter v. Sam's Club, 250 N.J. 240, 244, 271 A.3d 317, 319-20 (2022) (holding
mode of operation rule inapplicable because sale of grapes in closed clamshell containers
did not create reasonably foreseeable risk that grapes would fall to ground during ordinary
customer handling). Here, Plaintiff has not identified any evidence to support her position
that providing motorizecl shopping carts, in contrast to non-motorized carts, is an aspect of
the store's self-service operation that creates a substantial risk of injury.
To the extent Plaintiff suggests that the mode of operation rule applies because the
risk of injury resulting from an overstuffed cart is foreseeable,1 the furnishing of self"
service shopping carts, whether motorized or not, does not create a substantial risk of injury
that required special precautions to be taken by Walmart. "Every human activity involves
some risk of harm, but the reasonable probability of having other than a minor accident
from the use of carts in [the store's] operation does not give rise to a duty to take measures
against it." Znoski, 122 N.J. Super, at 248. While it may have been possible for customers
to stack their carts so high that they cannot see where they are going, Plaintiff proffers no
evidence that supplying motorized carts on a self-serve basis invited customers to do so.
See Layden^ 768 Fed. App'x. at 158 (concluding mode of operation did not apply because
hooks that plaintiff slipped on could be ripped off by customers, but no aspect of hooks or
packaging "invited" removal such that there was inherent substantial risk of injury in
store's use of them); Teixeria v. Walmart Stores, Inc., No. 18-13103, 2021 WL 4272828,
at ^3 (D.N.J. Sept. 16, 2021) (declining to apply mode of operation rule absent evidence
that store's display of merchandise on shelves "invited" customers to open bottles or
created particular risk of container being cracked).
Finally, Plaintiff argues that the mode of operation applies because the "checkout"
area where her injury occurred was a self-service setting nearly identical to the self-service
location of the plaintiffs slip and fall in Nisivoccia. However, the mode of operation rule
requires a "nexus between self-service components of the defendant's business and a risk
of injury in the area where the accident occurred." Prioleau^ 223 N.J. at 262. Thus, in
Nisivoccia, the mode of operation rule was applicable, not merely due to where the injury
occurred, but because the injury occurred In a location of the store where customers
selected and bagged loose grapes that "are reasonably likely to fall to the ground during
customer or employee handling" creating a dangerous condition. Nisivoccia, 175 NJ. at
565. The court recognized that the "dangerous condition caused by stray grapes In the entry
See discussion below of Mr. Strudl's deposition testimony regarding hypothetical scenario and "duty" to offer help
to patrons.

4

area of the checkout lanes was a foreseeable risk posed by the store's mode of operation."
Id. at 566. In this case, Plaintiff has not shown any nexus between the self-service
component of providing motorized shopping carts and the risk of injury near the checkout
area.

Thus, application of the mode of operation rule is not warranted here and
accordingly, Plaintiff must prove actual or constructive notice to establish liability.
B. Actual or Constructive Notice
Under the business invitee rule, Plaintiff must prove "defendant had actual or
constructive knowledge "o/'the dangerous condition that caused the accident " Nisivoccia,
175 N.J. at 563 (emphasis added). To show that Defendant had actual notice. Plaintiff relies
on the deposition testimony ofWalmart store manager Joshua Strudl.2 Mr. Strudl agreed
that in the "hypothetical scenario where a customer's view is obstructed by an overstacked motorized cart, it is possible that another customer may be hit, see Strudl Dep. Tr.
at 85:9-16, PSUMF at Ex. B, and that if he or another Walmart employee observed such a
scenario, the employee would have a "duty" to approach that customer and offer to take
items to the service desk to hold until the customer was ready to make the purchases. Stmd!
Dep. Tr. at 93:4-94:7, 95:21-96:3. Plaintiff also points to testimony by Mr. Strudl that he
was aware of approximately 15 prior collisions involving motorized carts striking other
objects. Id. at 75:1-14. Even if as Plaintiff proposes, such testimony reflected that Walmart
had a general concern about motorized carts, it does not demonstrate that Walmart had any
actual notice of the over-stacked cart operated by the unidentified customer that caused
Plaintiffs injuries. See e.g., Layclen, 768 Fed. Appx. at 156 (noting there was no evidence

ofactual notice that plastic hook that plaintiff slipped on was on floor).
Since Plaintiff has not presented any evidence of actual notice, she must
demonstrate that there is basis for a July to find that Defendant had constructive notice of
the dangerous condition that caused the accident. "The mere ' [ejxistence of an alleged
dangerous condition is not constructive notice of it.'" Arroyo v. Dnrling Realty, LLC, 433
NJ. Super. 238, 243 (App. Div. 2013) (citing Sims v. City of Newark, 244 N.J. Super, 32,

42 (Law Div.1990)). To meet her burden. Plaintiff must show that the condition "existed
for a sufficient length so that a reasonably diligent person would have known of the
condition." Klarman, 2018 WL 6729704, at :ii3; G^rn? v. Walmart, Inc., No. 17-03118,

2021 WL 754006, at :ii5 (D.NJ. Feb. 26, 2021) ("The key fact in determining constructive
notice is the length of time that the hazard was present."). While "[cjonstmctive notice is
usually a question of fact for the jury" summary judgment may be appropriate if "no
reasonable juror could conclude otherwise." Garcia, 2021 WL 754006, at ^5.

By Stipulation dated August 28, 2019, Mr. Stmdl was voluntarily dismissed from the action, as was Walmart, which
the Court can only assume was a typographical error. See Not. Of Removal, Ex. B, ECF No. 1-2.

Here, Plaintiff has not identified any evidence of how long the unidentified customer
had an over-stacked cart before Plaintiff was injured. See e.g., Arroyo, 433 N.J. Super. 238,

242-43 (concluding that plaintiff failed to present evidence that phone card discarded on
sidewalk was present for an unreasonable amount of time and that absence of actual or
constructive notice of discarded phone card on sidewalk was fatal to plaintiffs claims of

liability); compare Garcia, 2021 WL 754006 (finding that presence of hazard for 20
minutes was present was sufficient to raise genuine issue of material fact regarding
constructive notice of spill). Construing the record in a light most favorable to Plaintiff,
there is no basis for a jury to find that Defendant had constructive notice of the alleged
hazard that caused Plaintiffs Injuries.

IV. CONCLUSION
For the reasons noted above, Defendant's motion for summary judgment is granted.

<^<^

Date: Novembe

^! 2022

WILLIAM J.^IARTINI, U.S.D.J.