Negligence

The plaintiff Bridgett Knight alleged that she slipped and fell near the exit door of the defendant Family Dollar Stores as a result of liquid that she claimed emanated from a bottled beverage located in a self-service refrigerator near the cash register.  The plaintiff contended that the mode of operation doctrine should apply to this spill, relieving her of the burden of proving the defendant store’s actual or constructive notice of the condition.  In Knight v. Family Dollar Stores, Inc., 2022 N.J. Super. Unpub. LEXIS 1580 (App. Div. August 31, 2022), the Appellate Division was asked to determine whether the mode of operation rule should be applied to the circumstances.

If the mode of operation doctrine applied, the plaintiff would be relieved of demonstrating the defendant’s actual or constructive notice of the dangerous condition on its premises (i.e., the liquid on the floor).  The rule would be applied when a “dangerous condition is likely to occur as a result of the [defendant’s] business, the property’s condition, or demonstrable pattern of conduct or incidents.”  Further, when the defendant’s business has a “self-service” method of operation, the defendant is required to anticipate debris falling on the ground resulting from the carelessness of either customers or employees.”

The plaintiff argued that the defendant store permitted its customers to help themselves to beverages contained in a refrigerator display.  Thus, the plaintiff argued that the defendant’s business meets the definition of self-service.  However, the Court pointed out that this rule would only apply to accidents occurring in areas affected by the business’s self service operations, which could extend beyond the produce aisle of supermarkets.  But, there must be a nexus between the self-service components of the defendant’s business and risk of injury in the area where the accident occurred. 

At the trial court level, the judge granted the defendant’s summary judgment motion and dismissed the complaint.  The court found that the plaintiff failed to present any facts that the defendant had actual or constructive notice of a dangerous condition.  The judge also found that the mode of operation exception was inapplicable to the present facts.

Upon review by the Appellate Division, the Court agreed with the trial court judge.  The Appellate Division referenced the recent Supreme Court case of Jeter v. Sam’s Club, in which the Supreme Court found the mode of operation rule inapplicable to a fall on loose grapes when the grapes were sold in a closed and sealed clamshell container. This manner of sale provided “virtually no chance of spillage during ordinary permissible customer handling.” 

Similarly, the Appellate Division here found that there was no evidence “supporting an inference that any of the bottles in the refrigerator were opened and spilled by another customer prior to plaintiff’s fall.”  Further, there was no evidence produced that the defendant’s business practice permitted its sealed self-serve beverages to be opened and consumed on the premises.  Thus, the Appellate Division ruled that the plaintiff had failed to provide the necessary “nexus between the dangerous condition and defendant’s mode of operation.”

Because the Appellate Division found that the mode of operation rule did not apply, to establish a claim for premises liability, the plaintiff would have to show that the defendant had actual or constructive notice of the dangerous condition.  The Court found that the record was “devoid of any evidence” demonstrating the source of the substance or how long it was present before plaintiff’s fall.  There were no photographs or video showing the substance on the date of the incident.  The incident report only claimed that plaintiff slipped on a liquid on the floor but did not indicate the defendant was on notice of any spilled liquid near the store’s exit before plaintiff’s fall.

Thus, the Appellate Division affirmed the trial court decision, dismissing the complaint.

By: Patrick J. Graham, Esq.

Editor: Betsy G. Ramos, Esq.

Plaintiff, Gladys Bednarko, sued Defendant, Ben’s Bagel Barn after she was hit on the back of her right foot by Defendant’s front door that she alleged closed “too fast” behind her. Specifically, Plaintiff alleged that upon leaving Defendant’s store front, she pushed open the front door just far enough to take one step out with her left foot and when she let go of the door, it closed, striking her right foot and causing injuries. After a corresponding lawsuit and on appeal, the New Jersey Appellate Division in Bednarko v. Ben’s Bagel Barn, 2022 N.J. Super. Unpub. LEXIS 1011 (App. Div. June 8, 2022) was tasked with determining whether an inference of negligence arose under these circumstances pursuant to the common law doctrine of res ipsa loquitur.

Plaintiff’s complaint after the accident alleged that Defendant negligently maintained the door at issue and, alternatively, that defendants were negligent under the doctrine of res ipsa loquitur. In support of her claims, Plaintiff submitted an expert engineering report, which opined, nearly two years after the accident, that Defendant’s door closed approximately two seconds faster than the threshold amount of time enumerated in 36 C.F.R. § 1191 of the Americans with Disabilities Act.

Following the accident and initiation of Plaintiff’s case, a representative for the Defendant storefront testified that there were no reports of prior issues with this particular door, but that on occasions of heavy winds, the door would sometimes open widely and strike a railing just outside the doorway. To prevent the glass door from being damaged, Defendants covered the railing in towels to soften any potential contact.

Defendant filed a Motion for Summary Judgment arguing that Plaintiff had not established the existence of a dangerous condition of which Defendant had actual or constructive notice, which was fatal to Plaintiff’s negligence claim. The Court agreed, finding that Plaintiff failed to meet her burden of proof and that the towels on the railing outside of the door were not notice of a dangerous condition, but rather, were put in place in the event of heavy winds and had no connection to the door closing too fast. The Court also declined to apply the doctrine of res ipsa loquitur because Plaintiff could not establish that when she exited, her injury was not the result of her own act of negligence.

On appeal, the Appellate Division agreed with the trial court’s decision and found that Plaintiff failed to establish that Defendant had either actual or constructive notice of a dangerous condition of the premises. Therefore, Summary Judgment in favor of Defendants and dismissing Plaintiff’s negligence claim was affirmed.

Further, the Appellate Division also rejected Plaintiff’s negligence claim relying on the doctrine of res ipsa loquitur. Specifically, as a part of her claim, Plaintiff was required to prove that “there is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.” In affirming the trial court’s grant of Summary Judgment in favor of Defendant, the Appellate Division found that Plaintiff conceded that she did not open the door all the way and instead, opened it “just far enough” to step out with one foot. In so conceding, the Court believed that a reasonable jury could find plaintiff caused or contributed to her injuries. By not opening the door all the way, Plaintiff may have contributed to her injuries, which was fatal to her res ipsa loquitur argument.

With these findings, the Appellate Division agreed with the trial court and affirmed Summary Judgment in favor of Defendant.

Plaintiff Atef Kamel slipped and fell down steps in his apartment building’s stairwell while he was taking out his recycling.  He claimed that his slip and fall was caused by a combination of an unknown, oily liquid on the floor and a broken light in the stairwell.  The issue in Kamel v. Panyork Group, 2022 N.J. Super. Unpub. LEXIS 721 (App. Div. May 2, 2022) was whether the defendant apartment building owners could be liable for the injuries suffered in the fall.  Specifically, the court had to resolve whether the defendants had constructive notice of the alleged defects that caused the accident, as well as whether the mode of operation doctrine should be expanded to fit the landlord/tenant relationship. 

The plaintiff was a residential tenant in the building owned by the defendants Panyork Group Inc. and Panyork Gibraltar Tower, Inc.  At the time of the accident, all of the tenants were precluded from using the building’s elevators because of an elevator modernization project.  Tenants were only permitted to use the elevators with the assistance of building staff.  They were requested to dispose of their own recycling in designated areas but also had the option of leaving the recycling in trash rooms on their respective floors.

The superintendent of the building, Jose Lopez, oversaw the maintenance of the apartment building.  He inspected the stairwells about four times a day regularly because he and his assistant use the stairs themselves.  The stairwell was also inspected every day between 9:00 and noon when they took out the garbage.  On the date of the accident, he finished his work at about 8:00 p.m. and did not detect any spills in the stairwell and the lights were functioning properly.  The stairwell was last inspected at 4:00 p.m. and his assistant inspected it again at 6:00 p.m.

The plaintiff’s accident occurred at about 10:40 p.m. as he was traversing the building stairwell.  As a result of the fall, he injured his neck and underwent a cervical decompression and fusion.  He sued the apartment buildings owners for his injuries, claiming that they were negligent in the maintenance of the property.

The defendants filed for a summary judgment, which was granted by the trial court.  The trial court judge explained his ruling by stating that the plaintiff did not offer any evidence that could “establish when the alleged oily substance occurred, or when the stairwell light was damaged.”  Further, the plaintiff did not offer an expert to testify about apartment building maintenance or to offer guidelines about a standard for inspections or their frequency.

This decision was appealed to the Appellate Division. The issues on appeal were whether the plaintiff had presented sufficient proof to establish constructive notice of the condition and/or whether the mode of operation standard should be applied to the circumstances of this accident.

The Appellate Division noted that for the plaintiff to establish a prima face case of negligence, he had the burden to establish that the owner of the property breached its duty to discover and eliminate dangerous conditions and to maintain the premises in a safe condition.  The Court specifically stated that “owners of a premises are generally not liable for injuries caused by a defect if they have no actual or constructive notice and no reasonable opportunity to discover the defect.”  Constructive notice has been defined by the case law as existing “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.”

The Appellate Division agreed with the trial court that the plaintiff’s claim failed because “plaintiff had not demonstrated that defendants had actual or constructive notice of either the spilled liquid or the broken light in the stairwell.”  The Court noted that it was the plaintiff’s burden to prove that had the defendants inspected the stairwell, they would have found the dangerous condition and fixed it in a reasonable period of time. 

Under the facts of this case, the Appellate Division found that the apartment complex had inspected the stairwell that Friday afternoon and there was nothing wrong with the stairwell.  No other tenants had reported anything wrong with the stairwell and there were no witnesses who could testify to the fact that defendants had constructive notice of the alleged conditions that the plaintiff claimed caused the accident.

The Appellate Division also rejected the plaintiff’s argument that the mode of operation standard should be expanded to fit the landlord/tenant relationship. (If the mode of operation standard applied, the plaintiff would be relieved of the obligation to prove notice.) The Court noted that this doctrine only applies in self-service situations and where the plaintiff’s accident bears a relationship to the self-service component of the defendant’s business.  The Appellate Division explained that the courts have never expanded the operation doctrine beyond the self-service setting.

The plaintiff argued that the tenants being asked to take out their own recycling constituted self-service.  The Appellate Division disagreed with that argument, finding that “this was a temporary solution to the elevators being out, not a core function of defendants’ business.”  Plaintiff had the option of leaving the trash on his floor but chose to take the stairs.  Hence, the Court found that the mode of operation doctrine did not apply.  Accordingly, the plaintiff was not relieved of the obligation of proving actual or constructive notice of the alleged dangerous condition that caused his accident. 

Thus, the Appellate Division agreed with the trial court’s decision and affirmed the summary judgment in favor of the defendant apartment owners, dismissing the case. 

Plaintiff Kathleen Fisher attended a high school soccer championship game which was held at the Kean University stadium.  The game was sponsored by the New Jersey State Interscholastic Athletic Association (NJSIAA).  While leaving the stadium after the game finished, plaintiff tripped and fell on a raised sidewalk and suffered an injury.  Plaintiff sued Kean University for her injuries.   The issue in Fisher v. Kean University, 2022 N.J. Super. Unpub. LEXIS 493 (App. Div. March 29, 2022), was whether Kean University (Kean) was immune from liability for the plaintiff’s injuries based upon the Charitable Immunity Act (“CIA”).

Due to plaintiff’s trip and fall, she injured her cervical spine. As a result of the injury, she underwent cervical spinal fusion surgery.

Plaintiff sued Kean claiming that it “negligently constructed or maintained the premises, or negligently failed to give proper warning of the dangerous condition of its property.”  After discovery closed, Kean filed for summary judgment arguing that it was immune from liability under the Charitable Immunity Act (CIA), N.J.S.A. 2A:53A-7 to 11.  Kean also argued that the plaintiff’s injury failed to meet the threshold requirements of the New Jersey Tort Claims Act.

The trial court judge applied the three-prong test used to determine immunity under the CIA.  She correctly stated the test as follows:

An entity qualifies for charitable immunity when it (1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable works.

The trial court judge focused on the portion of the test as to whether Kean was promoting its educational purposes by permitting the NJSIAA to conduct its championship game at the University’s stadium.  The trial court noted that the court “should focus on the stated purposes of the charitable defendant and give due recognition to the broad discretion of latitude the law grants charitable institutions for the methods of achieving their charitable objective.”

The trial court judge found that Kean’s mission statement expressly included collaborating with educational and community organizations.  She noted that was exactly what Kean did in bringing together the high school soccer teams from multiple high schools to compete in the event.  She found that plaintiff did not offer any facts which could conclude that Kean failed to meet the CIA test and entered an Order dismissing the complaint.

The plaintiff appealed this decision to the Appellate Division and reiterated her arguments made below at the trial court level.  She argued that there was an issue of fact as to whether Kean was furthering its educational objectives by sponsoring a high school soccer tournament and, thus, summary judgment should not have been granted.

The Appellate Division rejected the plaintiff’s argument and affirmed the trial court decision.  The Court noted that there was a certification submitted from Kean’s acting Director of Athletics, Matthew Caruso.  Mr. Caruso certified that at the time of plaintiff’s accident, Kean was (1) a non-profit organization; (2) organized exclusively for charitable and educational purposes; and (3) promoting its charitable and educational objectives by hosting the NJSIAA Girls Soccer Championships.

The Appellate Division noted that Kean’s mission statement was referenced by the trial court judge which stated that the University dedicated itself “to the intellectual, cultural, and personal growth of all its members – students, faculty, and professional staff.”  Further, it noted that Kean “collaborates with business, labor, government and the arts, as well as educational and community organizations and provides the region with cultural events and opportunities for continuous learning.”

The Court pointed out that, in prior case law, the term “educational” had been broadly interpreted and not limited to purely scholastic activities.  Further, prior case law found that a “nonprofit corporation may be organized for exclusively educational purposes even though it provides an educational experience which is recreational in nature.” 

Here, Kean’s mission statement specified its intention to prepare its students to “serve as active and contributing members of their communities” by attending “an interactive university” that “collaborated with business, labor, government and the arts, as well as educational and community organizations.”  Thus, the Appellate Division agreed with the trial court judge that “no reasonable factfinder could conclude Kean was not promoting its stated educational objectives by hosting a high school soccer championship sponsored by the NJSIAA at its stadium.”  Thus, the Court affirmed the trial court decision which found that Kean University was immune from liability for the plaintiff’s injuries.

Plaintiff, Leah Skarbnik was a member of the defendant fitness facility, Life Time Fitness, Inc., and was injured after participating in a yoga class at the facility. She fell after participating in a “hot yoga” class. The issue in Skarbnick v. Life Time Fitness, Inc., 2021 N.J. Super. Unpub. LEXIS 2068 (App. Div. Sept. 2, 2021) was whether the assumption of risk and release of liability exculpatory provisions in her agreement with defendant Life Time barred her negligence claim.

When plaintiff became a member of Life Time, she agreed to and executed a Life Time Member Usage Agreement (MUA).  The MUA contained an assumption risk provision, in which the member assumed the risk of injury in using the equipment and services at the fitness center, as well as participation in its programs.  Additionally, the agreement included a release of liability provision in which the member waived any and all claims or actions that may arise against Life Time resulting from the negligence of Life Time or anyone using a Life Time Center.

The plaintiff had become a member of Life Time back in July 2011 and used that particular facility 1,756 times between the date her membership began and the date of the accident.  Before this accident happened, plaintiff had been attending “hot” yoga classes for at least a year, six or seven per week.  Each of these yoga classes was held in the same studio of the facility.  The studio had semi-shiny dark wood floors.  The classes were fast paced and extremely hot with the temperature inside the studio set to over 90 degrees.  Before this accident occurred, plaintiff was aware that due to the nature of the class, participants would sweat and that the floor would get wet with sweat and water.

On the date of the accident, plaintiff attended a 9:00 a.m. hot yoga class at the facility, which lasted one hour.  She was bare foot because shoes were not allowed in the studio.  The lights were off and the curtains on the windows in the room were closed.  Eventually, the lights are turned on because at the end of the class another class comes in.  Because she had to leave, the room was still dark and most people were still laying down on the floor.  She zig zagged around other people’s mats to get to the door.  While she was trying not to step on someone’s mat, she placed her right foot on liquid and landed on her elbow.  The liquid was described as someone else’s sweat.  As a result of her fall, plaintiff suffered severe injuries to her right elbow, which required surgery.

The plaintiff sued the defendant Life Time, claiming that it was negligent in that it allowed or created a dangerous condition to exist on the premises – “a wet and slippery floor” and failed to warn people about it.  She did not claim in her complaint that the defendant had engaged in intentional, reckless, or grossly negligent conduct.  In its answer, the defendant fitness facility asserted an affirmative defense that the case should be dismissed because plaintiff had “assumed the risk” and waived and/or released her right to pursue the cause of action.

After discovery ended, the defendant filed a Motion for Summary Judgment arguing that the agreement signed by the plaintiff barred any ordinary negligence claims arising out of the fitness and exercise activities.  At oral argument, plaintiff’s counsel asked the motion judge for permission to amend the complaint to assert a claim for gross negligence.

The motion judge refused to grant the plaintiff’s oral application for leave to amend the complaint, finding that plaintiff had plenty of time to amend it before the motion hearing date.   The judge found that the sweat on the floor was a natural consequence of hot yoga and, that when plaintiff fell, she was still participating in the activity.  He found that the assumption of risk language and release of liability language in the agreement prevented the plaintiff from suing the defendant Life Time.  Thus, he dismissed the complaint.

Plaintiff filed an appeal of this decision, arguing that the agreement signed by the plaintiff was too broad and unconscionable.  Plaintiff also argued that the motion judge should have considered the plaintiff’s oral application for leave to amend the complaint to add a gross negligence count.  The Appellate Division rejected both of these arguments. 

The Appellate Division reviewed the assumption of risk and release of liability language and found that they put the “gym’s patron on clear notice of the risks she was assuming and the liability she was waiving and did not violate public policy.”  While a private gym cannot insulate itself from the duty of care owed by a business to its invitees concerning the condition of its premises, the plaintiff here fell as a direct result of her participation in the defendant’s hot yoga class.  Under New Jersey law, that type of accident can be barred through appropriate “exculpatory” clauses in an agreement with a gym’s member.

As for the plaintiff’s attempt to include a gross negligence claim by an amendment at oral argument, the Appellate Division found that there was no abuse of discretion in the motion judge’s refusal to hear plaintiff’s unnoticed oral application to amend the complaint.  Plaintiff’s oral application was improper and was simply unfair to the defendant.  Further, the Appellate Division found that, even if the complaint did include a gross negligence claim, the plaintiff had not pleaded a viable claim of gross negligence.  It noted that participants of a hot yoga class are going to sweat and “[a]llowing some sweat to accumulate on the floor during a class is not grossly negligent.  Nor is it grossly negligent to dim the light in the room.”

Thus, the Appellate Division upheld the motion judge’s decision to grant the defendant’s motion for summary judgment based upon the exculpatory clauses in the agreement between the Life Time and the plaintiff. 

Plaintiff Michele Bass fell and suffered an injury while walking down an exterior staircase while attending a meeting at the defendant House of Prayer, Church of God in Christ of Orange. She claimed that she fell due to a negligent condition of the Church’s stairs, including dangerous cracks. The issue in Bass v. House of Prayer Cogic of Orange, 2021 N.J. Super. Unpub. LEXIS 3173 (App. Div. Dec. 29, 2021), was whether Plaintiff was able to establish that the Church had engaged in grossly negligent conduct so as to preclude immunity under the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11.

Plaintiff, while not a member of the Church, was lawfully on the premises to attend a meeting with women from various churches in the area. Plaintiff had attended previous meetings at the Church and had always entered and exited through the front door. However, on the day of Plaintiff’s fall, she parked her car behind the Church and used the rear door.

While Plaintiff’s claim was that she fell due to “dangerous cracks” in the stair’s landing, during her deposition, she admitted that she never saw any cracks. But, she claimed that she knew the crack existed because she felt it and stumbled afterwards. She was unable, however, to identify the portion of the top staircase that may have caused her to stumble.

Plaintiff’s friend witnessed the accident and testified that the steps were “all cracked up.” She also was not able to identify the cause of Plaintiff’s fall and did not see Plaintiff step on a crack.

Two Church trustees were deposed and neither was aware of any cracks or damage to the stairs on the day of Plaintiff’s fall. They denied knowledge of any alleged dangerous condition regarding the stairs and were unaware of any prior complaints as to the stairs. Further, one of the trustees assisted Plaintiff following the fall and Plaintiff told the Trustee that her hand slipped off the railing.

At the trial court level, the Church filed for a summary judgment on the basis of the Charitable Immunity Act. While not contesting that the Act did not apply, Plaintiff contended that there was an issue of gross negligence that should be submitted to a jury and, hence, would preclude an order for summary judgment. However, the trial court judge disagreed, finding no evidence of gross negligence and granted summary judgment to the Church.

This appeal ensued with Plaintiff arguing that there were issues of fact and summary judgment should not have been granted.

The Appellate Division affirmed the trial court ruling. The Court noted that the Act does not accord blanket immunity to a charitable organization. Pursuant to N.J.S.A. 2A:53A-7(c), a person who is injured “by a willful, wanton or grossly negligent act of commission or omission” is not precluded from filing a lawsuit under the Act. The Appellate Division stated that while “gross negligence” is not defined in the Act, “it is commonly associated with egregious conduct … and is used to describe ‘the upper reaches of negligent conduct.’”

Here, the parties agreed that the Church was a charitable entity and Plaintiff was “a beneficiary of the Church’s work” so as to qualify for immunity under the Act. Thus, the focus was on whether the Church acted with gross negligence so as to bar the application of the Act.

The Appellate Division held that Plaintiff had presented no evidence that the Church’s actions constituted gross negligence. She could not articulate “the precise cause of her fall” and had said that “her hand slipped from the handrail.” Later, she claimed that she fell due to a crack in the staircase but was not able to identify the crack that caused her to fall. She also was not able to prove that there were prior complaints about the staircase or that the Church had notice of a “defective condition” associated with the staircase.

The Court pointed out that “[a] motion for summary judgment will not be defeated by bare conclusions lacking factual support.” Evidence was required to create a question of fact. A plaintiff must “do more than raise mere speculation and conjecture in opposing summary judgment.” The Appellate Division agreed with the trial court judge that summary judgment was properly granted because Plaintiff had failed “to proffer evidence of gross negligence, aside from her own unsupported conclusions.”  Therefore, the Church remained immune from suit under the Charitable Immunity Act.

Plaintiff Maria Quinones slipped and fell on water on the floor of Kohl’s Clifton store.  She fell on water, described as a two foot long strip of water, as she was walking towards the checkout lane to get in line.  The issue in Quinones v. Kohl’s Department Stores, Inc., 2021 N.J. Super Unpub. LEXIS 2067 (App. Div. Sept. 2, 2021) was whether the defendant store had actual or constructive notice of the water on the floor, which was necessary for the plaintiff to prove her claim against the defendant store.

Plaintiff testified that she fell as she was walking towards the checkout lane to get in line, with four to five people already ahead of her.  Before she fell, she did not see the water that caused her to fall.  After she fell, she described it as a two foot long strip of water, the “kind of thing where if somebody spilled water out of a bottle while they were walking, it would leave a swath of water on the ground.”  However, she did not know the source of the water, nor did she see anyone spill it.  She also did not know how long it had been on the floor before her fall.

At the trial court level, the defendant store moved for summary judgment.  It argued that plaintiff had no evidence that the defendant knew or should have known that the water was on the floor. 

In opposition to the summary judgment motion, plaintiff provided an affidavit containing new and different information for what she had provided in her discovery responses and in her deposition testimony.  In the affidavit, she stated that the Kohl’s assistant store manager who assisted her after the fall told her that “he was sorry the accident occurred since he told the cleaning people to clean up that area a while ago before the accident happened, but they did not do it.”  When the plaintiff testified in her deposition, she failed to mention any of that statement.  In her affidavit that she submitted, she claimed that she had not mentioned it “because she did not believe it was important.”

The trial court judge acknowledged the affidavit but rejected it as a “sham” affidavit.  Further, the trial court judge concluded that the mode of operation rule did not apply because the defendant did not sell water.  The trial court judge granted the defendant store’s motion for summary judgment, finding that there was no genuine issue of fact as to whether the defendant had actual or constructive notice of the water that caused plaintiff’s fall.

This appeal ensued.  The plaintiff argued that the trial court judge erred in rejecting her affidavit and claimed that there were genuine issues of material fact as to defendant’s actual and constructive notice of the water on the floor.

The Appellate Division noted that for a business owner to be held liable for a dangerous condition of its property, it must have actual or constructive of the dangerous condition that caused the accident.  With the absence of actual or constructive notice of the dangerous condition, that would be fatal to a plaintiff’s claim of premises liability.  For a business owner to be deemed to have constructive notice of the dangerous condition, it must have existed “for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent.”

The Appellate Division agreed with the trial court judge that the affidavit was a sham affidavit and should not be considered.  It was not a mere clarification of her prior testimony but was a direct contradiction of it.  Further, the Appellate Division found that the plaintiff’s deposition testimony did not support the argument that the accident occurred directly in the cash register area but, rather, that it occurred as she was walking to get into line.  The Appellate Division also noted that “well-settled law does not support a finding of constructive notice based on the purported proximity of the accident to the cash-register area.” 

Hence, the Appellate Division upheld the trial court’s decision, dismissing the complaint.