Plaintiff Widelande Raymond suffered a serious bodily injury when she slipped and fell on a slippery substance on her apartment building’s stairs. She sued the building owner, Layna Realty, LLC, and the property manager, Pentaurus Properties, LLC. The issue in Raymond v. Layna Realty, LLC, 2021 N.J. Super. Unpub. LEXIS 1673 (App. Div. Aug. 10, 2021) was whether the plaintiff had presented sufficient proofs to establish that the defendants had constructive notice of the alleged dangerous condition and/or whether the mode of operation rule applied, which would have obviated the plaintiff’s need to prove notice.
Plaintiff lived on the third floor of a three-story apartment building of about 26 units, owned by Layna Realty and maintained by Pentaurus Properties. Pentaurus Properties employed a resident superintendent who worked 5 days per week and after hours as necessary. For about 1-1 ½ hours each morning, the superintendent was required to mop the stairs, the landings and tiled areas, vacuum the carpet, and remove any minor debris from the stairwells and outside the apartment building.
One night, between 8:00 to 9:00 pm, the plaintiff, wearing flip flops, left her apartment and walked down the stairs to go the store. As she walked from the second to first floor, she slipped and slid down a number of steps. After falling, she observed a sticky, oily like substance on the steps and second floor landing. She injured her back, knees, and left leg.
The defendants successfully moved for summary judgment, obtaining a dismissal of the complaint. The trial court judge found that the plaintiff had failed to meet her burden to prove that the defendants had actual notice of the sticky substance or that they had constructive notice of the substance “because it was there for a reasonable length of time – but failed to remove it.”
Upon appeal, the Appellate Division noted that “[t]here was no dispute that defendants had a duty to maintain the apartment building ‘in a reasonably safe condition’ to guard against foreseeable dangers arising from a tenant’s use of the premises.” But “[t]he mere existence of an alleged dangerous condition is not constructive notice of it.” The plaintiff must be able to prove that the condition existed for such a length of time “as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”
Here, the plaintiff argued that the defendants were aware that tenants walked down the stairs, carrying their trash to dispose of it; she slipped on a sticky-oily substance on the stairs; plaintiff always saw the floor dirty; and it was “common knowledge” that oily-like substances turn sticky after being exposed to air for some length of time.
The Appellate Division rejected these arguments as sufficient to prove that defendants had constructive notice of the slippery substance on the stairs. The plaintiff was unable to prove that the substance had been on the floor long enough for the defendants to be aware of it. Further, the plaintiff failed to produce an expert report to support her theory that the characteristics of the substance demonstrated that it had been on the stairs for some time.
The Court also rejected the plaintiff’s alternative argument, relying upon the mode of operation rule to relieve her of the obligation to prove notice. The Appellate Division pointed out that this rule only applied in self-service activities of a business and our courts have never expanded this rule 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 found that plaintiff’s efforts to apply the mode of operation rule to infer negligence against defendants was without merit. The Appellate Division noted that the accident did not result from the type of self-service activity required for the application of this rule. Specifically, the Court found that even assuming that the substance was left on the stairs by someone carrying out their trash, “a tenant’s disposal of trash is not a self-service component of defendants’ business.”
Thus, the Appellate Division affirmed the trial court’s decision, upholding the dismissal of the complaint as to the defendants.
