NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1687-14T4

ANNETTE TROUPE, APPROVED FOR PUBLICATION Plaintiff-Appellant, January 26, 2016 v. APPELLATE DIVISION

BURLINGTON COAT FACTORY WAREHOUSE CORPORATION,

Defendant-Respondent. ________________________________________

Submitted December 7, 2015 – Decided January 26, 2016

Before Judges Sabatino and Suter.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8271-12.

Kelso and Bradshaw, attorneys for appellant (Patrick J. Bradshaw, on the brief).

Reger Rizzo & Darnall, LLP, attorneys for respondent (Richard M. Darnall and Thomas M. Krick, on the brief).

The opinion of the court was delivered by

SUTER, J.S.C. (temporarily assigned).

Annette Troupe appeals the dismissal of her slip and fall

complaint following a motion for summary judgment by Burlington

Coat Factory Warehouse, Inc. (Burlington). We affirm because,

lacking any actual or constructive notice of the dangerous condition, Burlington did not breach the duty of care to

plaintiff as its invitee. We hold as well, by applying the

Supreme Court's recent decision in Prioleau v. Kentucky Fried

Chicken, Inc.,

(2015), that the mode-of-operation

rule does not apply here, where the berry on the floor that

apparently caused the fall was not significantly connected with

any self-service component of Burlington's business.

I.

On the afternoon of April 22, 2011, plaintiff Annette

Troupe and her sister entered Burlington Coat Factory in the

Middlesex Mall and proceeded to the "Baby Depot" section in the

back of the store. Plaintiff's right foot slipped on an unseen

berry in the aisle, causing her to fall and seriously injure her

knee and back. Investigation revealed there was no other fruit

in the vicinity and no one eating fruit. The berry left a tell-

tale purplish smear along the floor extending from where Troupe

started to slip to where she came to rest, leaving a "little

seed." Troupe filed suit in December 2012.

Discovery revealed that an outside service cleaned the

store every morning before it opened. Aside from that, there

was no periodic sweeping of the floors, but employees who

dropped or saw something on the floor would pick up what was

there. The baby department required about the same amount of

2 A-1687-14T4 cleaning as the other departments, according to the former store

manager.

Troupe's liability expert issued a report that was critical

of Burlington for its lack of periodic inspections. He said

because Burlington sold baby and children's clothing,

"Burlington . . . should have foreseen, that at various times

those babies and children would be doing the things that babies

and children normally do, including eating snacks, drinking

drinks, and dropping things onto the floor." This posed a

"substantial risk of injury." The expert opined that

Burlington's failure to inspect was a "substantial contributing

cause of Ms. Troupe's fall."

Burlington's motion for summary judgment was granted by

Judge Arthur Bergman, who found Burlington had not breached its

duty of care because there was no evidence of actual or

constructive notice by Burlington of the berry prior to Troupe's

slip and fall. He also rejected application of the mode-of-

operation rule because the berry "wasn't anything that they're

selling." Troupe appeals from that order.

II.

Where there is an appeal from a summary judgment decision,

we review the decision de novo, meaning that we apply the same

standards used by the trial judge. W.J.A. v. D.A.,

,

3 A-1687-14T4 237 (2012). The question then is whether the evidence, when

viewed in a light most favorable to the non-moving party, raises

genuinely disputed issues of fact sufficient to warrant

resolution by the trier of fact or whether the evidence is so

one-sided that one party must prevail as a matter of law. Brill

v. Guardian Life Ins. Co. of Am.,

(1995).

Applying this standard, the record amply supports Judge

Bergman's finding there were no genuine issues of fact about

Burlington's actual or constructive notice of the dangerous

condition prior to Troupe's fall. Further, the judge correctly

decided, as a matter of law, that the mode-of-operation rule

does not apply to these facts.

A.

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 Garden, Inc.,

(2003);

Hopkins v. Fox & Lazo Realtors,

(1993). The

duty of due care to a business invitee includes an affirmative

duty to inspect the premises and "requires a business owner to

discover and eliminate dangerous conditions, to maintain the

premises in safe condition, and to avoid creating conditions

4 A-1687-14T4 that would render the premises unsafe."

.

Owners of premises are generally not liable for injuries

caused by defects of which they had no actual or constructive

notice and no reasonable opportunity to discover.

For

that reason, "[o]rdinarily an injured plaintiff . . . must

prove, as an element of the cause of action, that the defendant

had actual or constructive knowledge of the dangerous condition

that caused the accident."

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." Parmenter v. Jarvis Drug Stores, Inc.,

(App. Div. 1957). Constructive notice can

be inferred in various ways. The characteristics of the

dangerous condition giving rise to the slip and fall, see, Tua

v. Modern Homes, Inc.,

(App. Div. 1960)

(finding constructive notice where wax on the floor had hardened

around the edges), or eyewitness testimony, see, Grvanka v.

Pfeifer,

(App. Div. 1997), certif.

denied,

(1998) (finding constructive notice where

eyewitness noted the light had been out for a while) may support

5 A-1687-14T4 an inference of constructive notice about the dangerous

condition.

Here, the trial court was correct that Troupe did not show

there was actual or constructive notice of the dangerous

condition of the premises prior to her fall. There was no proof

Burlington or any employee had actual knowledge about the berry

on the floor. There were no eyewitnesses and nothing about the

characteristics of the berry that would indicate how long it had

been there. There were no other berries in the vicinity. No

one was found to have been eating berries in the area. Without

actual or constructive notice of the dangerous condition, the

trial judge was correct that Burlington did not breach its duty

to Troupe.

B.

Troupe contends the trial court erred in not applying the

mode-of-operation rule because "the mode-of-operation that

created the hazard was the lack of any periodic inspection of

the floors during the business shopping day." Most recently,

the Court has clarified the mode-of-operation rule in

. Prioleau involved a slip and fall

near the bathroom at a Kentucky Fried Chicken restaurant on

either grease tracked from the kitchen by employees or water

tracked into the store by customers on a rainy day.

.

6 A-1687-14T4 The trial record established that Prioleau's slip and fall was

"unrelated to any aspect of defendants' business in which the

customer foreseeably serves himself or herself, or otherwise

directly engages with products or services, unsupervised by an

employee."

The Court held it was reversible error to

charge the jury on the mode-of-operation rule where there was no

connection between the slippery condition of the floor and the

self-service component of the business.

In our case, Troupe encourages us to expand the mode-of-

operation rule beyond the narrow circumstances to which it has

been held to apply, claiming it should apply where the mode of

operation has to do with the store's cleaning schedule because

it was foreseeable that food items would be brought into the

children's department and then dropped on the floor by parents

or children. We decline to do so because this misconstrues the

rule in a manner that is inconsistent with Prioleau.

To begin with, the mode-of-operation rule is a "special

application of foreseeability principles" because of the risks

posed by self-service and "not a general rule of premises

liability."

. When the rule applies, it "relieves

the plaintiff of the burden of proving actual or constructive

notice of the dangerous condition."

It "gives rise to an

inference of negligence, shifting the burden of production to

7 A-1687-14T4 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."

(quotations and

alterations omitted). However, "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 Court

observed that what is important is "a nexus between self-service

components of the defendant's business and a risk of injury in

the area where the accident occurred."

In applying these principles, we agree with Judge Bergman

the mode-of-operation rule does not apply to the facts in this

case. Here, the accident did not involve any self-service

component of Burlington's business. The slip and fall occurred

in an aisle, not in an area of clothing racks or "facilities

traditionally associated with self-service activities." There

was no demonstrable nexus between the self-service component of

Burlington's business, namely selling clothes and other non-food

items, and the risk of a customer slipping on a berry in the

aisle. See Arroyo v. Durling Realty,

(App. Div. 2013) (rejecting a plaintiff's mode-of-operation

8 A-1687-14T4 theory of liability where the nexus between plaintiff's fall

outside of a convenience store on a discarded phone card and the

store's self-service rack offering such cards for sale was

"extremely attenuated"). Troupe did not show that the fruit had

anything to do with Burlington's business.

Troupe's expert report is not illuminating because it does

not address the mode-of-operation rule as our Supreme Court has

described it in Prioleau. Mode-of-operation liability is not

created merely because a store's cleaning schedule is allegedly

inadequate. Instead, such a theory of liability requires that

the dangerous condition arise from a self-service characteristic

of the store's operations.

.

To decide this case, we do not need to predict how the

mode-of-operation rule will be applied to the myriad of future

cases involving businesses that have self-service components.

For our decision, because the berry in the children's department

aisle had no demonstrable connection with any aspect of

Burlington's self-service business, the rule simply does not

apply. See

(finding mode-of-

operation instruction appropriate where customer slipped on

grape near checkout in supermarket that sold grapes in plastic

bags open at the top).

9 A-1687-14T4 The Supreme Court has given us the principles that are to

guide us in our application of the mode-of-operation rule.

Troupe proposes an expansion that would swallow the rule by, in

effect, shifting the burden of production to self-service

businesses to show what conduct by their patrons was not

foreseeable. However, for the rule to apply as the Court has

explained, it is the patron who must first show a clear nexus

between the self-service component of the business and "a risk

of injury in the area where the accident occurred." Id. at 262.

That nexus was not shown here, which precludes application of

the mode-of-operation rule.

Because Troupe failed to show Burlington had actual or

constructive notice of the berry in the aisle, and because the

mode-of-operation rule does not apply, the trial court was

correct in granting Burlington's motion for summary judgment.

Affirmed.

10 A-1687-14T4