NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-2046 ______________

PHILIP BROOKS, Appellant

v.

WAL-MART STORES, INC.; JOHN DOE; MARY DOE; ABC BUSINESS ENTITIES; XYZ CORPORATIONS ______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. Action No. 1:18-cv-01428) District Judge: Honorable Noel L. Hillman ______________

Submitted Under Third Circuit L.A.R. 34.1(a) December 14, 2020

Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges

(Filed: April 13, 2021) _____________

OPINION* ______________

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

Appellant Philip Brooks appeals the District Court’s April 24, 2020 order granting

the summary judgment motion of Appellee Wal-Mart Stores, Inc. (“Walmart”). Injuries

are always regrettable particularly if preventable. Here, in order to recover for his

injuries Brooks had to show a dangerous condition existed and establish that the store

knew of the dangerous condition and failed to act. Brooks cannot meet this burden. For

these reasons, we will affirm.

I. BACKGROUND

On July 11, 2016, Brooks visited a Walmart store in Mays Landing, New Jersey.

Brooks had shopped at the location many times before and therefore knew the store well.

That morning, Brooks acquired a shopping cart, entered the store and located the items he

wished to purchase. After grabbing these items, Brooks walked toward the front of the

store to check out. While on his way to the checkout area, Brooks proceeded through the

men’s clothing department. Brooks “turned his shopping cart down an aisle he described

as ‘tight’” because of “the arrangement of various clothing displays.” J.A. 5-6.

Brooks continued down the aisle until he encountered two unaccompanied

shopping carts partially blocking his path.1 Brooks tried to maneuver around the carts.

1 In his brief, Brooks maintains that a “female associate was specifically in the area of the incident – filling a shopping cart with items, which she then left unattended and which blocked [his] lane of travel in a high traffic area.” Appellant’s Br. 20. Brooks, however, testified: “I don’t know whether [the shopping carts] were actually hers or not.” J.A. 61. 2 Brooks successfully finagled his way around the first cart, but, while seeking to

maneuver around the second cart, Brooks struck his left foot on a bench used for trying

on footwear and injured his toes and foot. Brooks described the shoe bench as about

three-and-one-half feet wide and around one-and-one-half feet tall. Brooks does not

contend that the bench was blocking the aisle he was walking in. After striking his foot,

Brooks continued to the front of the store to report the incident. The store’s manager

completed an incident report, and Brooks left the store without requiring medical

attention.

Brooks initiated an action by filing a complaint in the Superior Court of New

Jersey. Brooks’s complaint alleged that “[w]hile shopping in the men’s department of the

store, [he] was caused to strike his left foot on a bench that was sticking out into the aisle

which was partially blocked by shopping carts.” J.A 33. Brooks thus alleged that

Walmart was negligent in permitting “hazards . . . to exist in the aisle while patrons such

as [Brooks] were utilizing the same, causing [Brooks] to bump his foot and become

injured.” J.A. 34.

In February 2018, Walmart removed this case from the Superior Court of New

Jersey to the United States District Court for the District of New Jersey. Following the

end of discovery, Walmart moved for summary judgment the year after, and the District

Court granted the motion. In resolving Walmart’s motion, the District Court credited

Brooks’s proffered version of the incident. The District Court determined that Brooks

had not established that Walmart had actual or constructive notice of a dangerous

condition on their premises. It noted that “New Jersey courts have held that shoe benches

3 are not inherently dangerous instrumentalities, and when used with due care, the Court

cannot conceive how they may be inherently dangerous,” and “[t]he same is true for

shopping carts.” J.A. 18 (first citing Carney v. Payless Shoesource, Inc., No. A-2680-

07T2,

, at *1-2 (N.J. Super. Ct. App. Div. Feb. 24, 2009); and then

citing Senisch v. Tractor Supply Co., No. 1:16–cv–47 (NLH/KMW),

, at

*7 (D.N.J. Jan. 8, 2018)). The District Court also highlighted that “New Jersey courts

hold that ‘minor imperfections’ or minor defects will not give rise to an actionable

claim.” J.A. 19 (citing Chamberlain v. City of Wildwood, No. A-3424-12T1,

, at *4 (N.J. Super. Ct. App. Div. Oct. 28, 2013); and Charney v. City of

Wildwood,

(D.N.J. 2010)). Thus, the Court held, “[i]n this

case, no reasonable jury could find that [Walmart] was negligent in failing to search out

and cure a minor defect – a bench that may have been an inch or two out of place.” J.A.

19.

The District Court also found that Brooks had not established that Walmart

possessed constructive notice of any allegedly dangerous condition. The Court reasoned,

“simply explaining that an employee was in the area where an incident occurred, without

more, is not enough to establish constructive notice; indeed, such facts do not explain

how long the dangerous condition may have existed or that [Walmart] had an opportunity

to correct it.” J.A. 21. Because the Court found that there was no proof in the record

suggesting that the bench was out of place over a long time or that Walmart had a

reasonable chance to correct its placement, it rejected Brooks’s constructive notice claim.

4 Last, the District Court held that the mode-of-operation doctrine did not apply.

Under that doctrine, New Jersey relieves a plaintiff from the burden of proving

constructive notice “in circumstances in which, 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.” Senisch,

,

at *5 (quoting Nisivoccia v. Glass Gardens, Inc.,

(N.J. 2003)). The

District Court explained: “New Jersey declines to apply the mode-of-operation doctrine

in situations, like the one before this Court, in which a plaintiff is injured by a shopping

cart or a shoe bench.” J.A. 13 (first citing Senisch,

, at *7; and then

citing Carney,

, at *1-2).2 The District Court determined that in

Brooks’s situation, “a reasonably prudent person would have seen the shoe bench, and

therefore, there is no inherent, latent harm requiring application of the mode-of-operation

doctrine.” J.A. 15. Having found that each of Brooks’s claims failed, the Court entered

summary judgment for Walmart. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under

. We have jurisdiction

under

.

2 Indeed, in Carney, New Jersey’s Appellate Division recognized that “two-foot by two- foot portable shoe benches for use by customers who try on merchandise do not raise a substantial risk inherent in defendant’s mode of doing business.”

, at *2. “Any reasonably prudent person would observe, in light of the dimensions of the benches, their presence in his or her lane of travel.”

5 We review de novo a district court’s disposition of a summary judgment motion.

Nicini v. Morra,

(3d Cir. 2000) (en banc). We therefore apply the

same standard for summary judgment as the District Court. Shields v. Zuccarini,

(3d Cir. 2001). A court reviewing a summary judgment motion must

evaluate the evidence in the light most favorable to the nonmoving party and draw all

reasonable inferences in that party’s favor. Brewer v. Quaker State Oil Refining Corp.,

(3d Cir. 1995). Summary judgment is appropriate “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.” Thomas v. Cumberland Cty.,

(3d Cir.

2014) (quoting Fed. R. Civ. P. 56(a)).

III. DISCUSSION

Brooks argues that the District Court erred in determining there were no genuine

disputes of material fact about either the alleged dangerous condition at Walmart or

whether the store had constructive notice of the alleged dangerous condition. Brooks also

challenges the District Court’s conclusion that New Jersey’s mode-of-operation doctrine

did not apply in this case.

A. DANGEROUS CONDITION AND CONSTRUCTIVE NOTICE

We agree with the District Court’s determination that no rational jury could

determine that the aisle, shopping carts, or shoe bench at Walmart constituted dangerous

conditions that presented an unreasonable risk of harm under New Jersey law.

“To sustain a cause of action for negligence, a plaintiff must establish four

elements: ‘(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual

6 damages.’” Townsend v. Pierre,

(N.J. 2015) (quoting Polzo v. Cty. of

Essex,

(N.J. 2008)). “Business 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,

(citations omitted). “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.”

“Ordinarily an injured plaintiff 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 the dangerous condition that caused the accident.”

“[P]remise liability . . . is dependent upon injury being caused by a dangerous

condition of property, which involves an unreasonable risk of harm.” Longo v. Aprile,

(N.J. Super. Ct. App. Div. 2004). The dangerous condition “must be

inherent in the property.” Weiser v. Cty. of Ocean,

(N.J. Super. Ct.

App. Div. 1999). Brooks argues that there is a genuine dispute of material fact as to the

existence of a dangerous condition. We disagree. The District Court correctly

determined that none of the conditions identified by Brooks—a clothing aisle, shopping

carts, or shoe bench—constituted dangerous conditions on Walmart’s property and that

the store could not have foreseen an unreasonable risk of injuries to customers such as

Brooks.

Indeed, Brooks admitted that the unattended shopping carts were not completely

blocking the aisle of his travel. Further, the shoe bench Brooks ran into was not blocking

the aisle in which he was walking, and Brooks conceded that his own merchandise-filled

7 shopping cart blocked his view of the bench. As the District Court pointed out, such a

bench does not raise a substantial risk in Walmart’s mode of doing business. And

shopping carts do not create a substantial risk of injury when used with due care in a way

it is reasonably foreseeable that a person will use them. While Brooks argues that the

“cluttered aisle in conjunction with the out of place bench” constituted a dangerous

condition, Appellant’s Brief 18, no reasonable jury could find that Walmart was negligent

in failing to search out and cure a minor defect—a bench that was protruding out “maybe

an inch or two” according to Brooks, J.A. 19.

Brooks’s constructive notice argument also fails. A defendant has constructive

notice of a dangerous condition when it exists “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)). Brooks argues that the “presence” of a Walmart

associate “in the area at the time of the incident” afforded the store constructive notice of

the condition of the shopping carts and shoe bench. Appellant’s Br. 13. But Brooks

specifically explained in his testimony that he “d[id]n’t know whether [the carts] were

actually [the employee’s] or not,” that the employee was “not in the aisle,” and the

employee “was some distance from the carts.” J.A. 61, 67. Further, as the District Court

explained, there was no proof in the record suggesting that the bench was out of place for

a long time or that Walmart had a reasonable chance to correct its placement. Brooks’s

averments therefore could not establish constructive notice.

8 B. MODE-OF-OPERATION DOCTRINE

We also agree that the District Court properly granted summary judgment because

Brooks presented insufficient evidence to support invoking the mode-of-operation

doctrine.

In New Jersey, “when a substantial risk of injury is inherent in a business

operator’s method of doing business, the plaintiff is relieved of showing actual or

constructive notice of the dangerous condition.” Nisivoccia,

. “In those

circumstances, [the New Jersey Supreme Court] ha[s] accorded the plaintiff 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.”

Senisch,

, at *5 (quoting Nisivoccia,

) (alterations in

original).

To benefit from this mode-of-operation doctrine, a plaintiff must show “that the

circumstances were such as to create the reasonable probability that the dangerous

condition would occur,” including “the nature of the business, the general condition of

the premises, [and] a pattern of conduct or recurring incidents.” Bozza v. Vornado, Inc.,

(N.J. 1964). The District Court properly held that the mode-of-

operation does not apply in every circumstance, and New Jersey declines to apply the

mode-of-operation doctrines in situations like the one before the Court. See Znoski v.

Shop-Rite Supermarkets, Inc.,

(N.J. Super. Ct. App. Div. 1973) (“We

are unable to say that a substantial risk of injury is implicit, or inherent, in the furnishing

of shopping carts to patrons by a store proprietor. Shopping carts are not dangerous

9 instrumentalities, and they are uniquely suitable for the purpose for which furnished.”);

Senisch,

, at *8 (describing “shoe bench[es]” and “hand truck[s]” as

“large object[s]” that “[a] reasonably prudent person would be able to observe . . . if one

were left in his or her lane of travel”). The lack of an inherently dangerous condition

based on the facts here negated the District Court’s need to apply the mode-of-operation

doctrine.

IV. CONCLUSION

For the foregoing reasons, we will affirm the order of the District Court.

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