NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 20-1098

JOHANNA CORTES; JOSE MILLAYES, her husband

Appellants

v.

BJ’S WHOLESALE CLUB; JOHN DOES 1-10, (said names being fictitious); XYZ CORP 1-10, (said names being fictitious) ________________

Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-16-cv-05513) District Judge: Honorable Susan D. Wigenton ________________

Argued September 21, 2020

Before: AMBRO, PORTER, and ROTH, Circuit Judges

(Opinion filed February 17, 2021)

Jonathan P. Holtz (Argued) Bramnick, Rodriguez, Grabas, Arnold, & Mangan, LLC 1827 E. 2nd Street Scotch Plains, New Jersey 07076

Counsel for Appellants

John M. Wutz (Argued) Shahenaz Y. Yates Chartwell Law Offices, LLP One Logan Square 130 North 18th Street, 26th Floor Philadelphia, Pennsylvania 19103

Counsel for Appellee

________________

OPINION* ________________

AMBRO, Circuit Judge

In this slip-and-fall case, Appellants-Plaintiffs Johanna Cortes and her husband

Jose Millayes (for convenience, we refer to them jointly and severally as “Cortes”) appeal

the District Court’s grant of summary judgment in favor of Defendant-Appellee BJ’s

Wholesale Club. For the following reasons, the District Court’s judgment will be vacated

and remanded.

I. Background

On a snowy morning in January 2015, Cortes visited a BJ’s store in Linden, New

Jersey. She testified that she was walking down one of the store’s aisles when she

slipped and fell in a dirty puddle of water that was about two-and-a-half feet wide. She

claims the water came from a flatbed cart with snow on top, which was melting and

dripping onto the floor.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 Cortes sued, seeking damages for BJ’s’ alleged negligence. BJ’s moved for

summary judgment, which the District Court granted, concluding there was no evidence

that BJ’s had actual or constructive knowledge of the hazard in question. Cortes filed a

timely notice of appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under

. We have jurisdiction

under

. We review the grant or denial of summary judgment anew and

“apply[] the same standard as the district court.” Tri–M Grp., LLC v. Sharp,

(3d Cir. 2011). “Summary judgment is appropriate only where, drawing all

reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any

material fact and . . . the moving party is entitled to judgment as a matter of law.” Ruehl

v. Viacom, Inc.,

, 380 n.6 (3d Cir. 2007) (internal quotation marks and

citation omitted).

III. Discussion

New Jersey law applies. To prevail on a premises-liability claim under that law, a

plaintiff must ordinarily show that the defendant “had actual or constructive knowledge

of the dangerous condition that caused the accident.” Nisivoccia v. Glass Gardens, Inc.,

(N.J. 2003). Here, there is no record evidence that BJ’s had actual

knowledge of the hazard that caused Cortes to fall. Thus the sole issue is whether Cortes

put forward sufficient evidence to create a genuine dispute of material fact on whether

BJ’s had constructive knowledge of the hazard. We conclude that she did.

3 “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.,

(N.J. Super. Ct. App. Div. 2016) (quoting Parmenter v. Jarvis Drug

Stores, Inc.,

(N.J. Super. Ct. App. Div. 1957)). Constructive notice

“can be inferred in various ways,” including from “[t]he characteristics of the dangerous

condition.”

Cortes argues that because the substance at issue had been present long enough to

melt from snow to water, a reasonable inference may be drawn that the substance had

been on the floor long enough that BJ’s should have been aware of it. In support, she

cites cases from other states concluding that such an inference may be drawn from the

presence of semi-frozen products that have melted. See, e.g., Hann v. 7-Eleven, Inc., No.

CV020080203S,

, at *2 (Conn. Super. Ct. June 3, 2004) (holding that a

dispute of fact existed as to whether a store had constructive notice of a spilled “slushy

drink” where the drink had “melted slightly”); Smith v. Wal-Mart Stores, Inc.,

(Ky. 1999) (holding that plaintiff who slipped on a melted Icee drink “was

entitled to the reasonable inference that because [the Icee] was in liquid form when she

slipped upon it, the Icee, which is normally found in a semi-frozen state, remained on the

floor for a sufficient period of time to allow the ice to melt”). These cases hold that once

a plaintiff presents evidence of how long the hazard has been present, the jury must

decide whether that “was a sufficient amount of time during which [the defendant], in the

4 exercise of ordinary care, should have discovered the spill’s existence and remedied the

situation.”

The District Court rejected this argument in quick order, instead relying on two

New Jersey slip-and-fall cases in which summary judgment was granted for the

defendant. See Hunt v. May Dep’t Stores Co., No. A-2769-05T5,

, at *2

(N.J. Super. Ct. App. Div. Apr. 2, 2007) (affirming summary judgment where “there

[was] no proof of how long [water] was [on the floor] before [the plaintiff] fell,” but

where there was no indication the water was from melting snow); Fleming v. Macy's E.,

Inc., No. A-5572-06T2,

, at *4 (N.J. Super. Ct. App. Div. July 30,

2008) (same). These cases are off point, however, because they did not involve a melting

substance.

Notably, the Appellate Division of the Superior Court of New Jersey accepts that

the condition of certain foreign substances can provide information as to how long those

items have been in a particular location. In Tua v. Modern Homes, Inc.,

(App. Div.), aff’d,

(1960), the plaintiff slipped and fell on a

“waxy substance” on the floor of a furniture store. The plaintiff testified that the wax

into which she stepped “was soft in the center and was so ‘encrusted’ around the edges as

to require [the use of] an implement to scrape the ‘encrusted’ substance from

the floor surface.” Id. The Court held that “[w]eak as plaintiffs’ proofs are in the case at

bar,” this evidence “was sufficient to justify the very inference of the existence of the

offending substance on the floor for a protracted period of time.” Id.

5 Drawing all reasonable inferences in Cortes’s favor, as we must, there is a genuine

dispute of material fact as to whether BJ’s had constructive notice of the hazard. As in

Tua, Cortes’s testimony about the condition of the large puddle of melted snow on the

floor, together with other relevant evidence, was sufficient to support a reasonable

inference as to the length of time the substance had been on the floor. New Jersey courts

have held that “[t]ypically,” constructive notice “is an issue of fact left for the jury’s

determination.” Bolchune v. Shop-Rite Supermarkets, Inc., No. A-3681-14T4,

, at *4 (N.J. Super. Ct. App. Div. Sept. 8, 2016). Accordingly, it is for the jury

to decide whether the amount of time it took for the large puddle to form on the floor was

sufficient to put BJ’s on constructive notice of the hazard. Thus we vacate the District

Court’s judgment and remand the case for further proceedings.1

1 Because we vacate on constructive notice grounds, we need not address Cortes’s alternative argument that the District Court’s order violated New Jersey Local Civil Rule 56.1. 6