Plaintiff Joseph Pasterkiewicz slipped and fell on the floor of a buffet restaurant operated by the defendant Marina Buffet, Inc. and owned by defendant King T. Group, LLC. The plaintiff claimed that he fell on the flooring around the buffet area. In Pasterkiewicz v. Marina Buffet, Inc., 2017 N.J. Super. Unpub. LEXIS 199 (App. Div. Jan. 30, 2017), the plaintiff contended that the defendants should be liable for his fall due to the “inherently dangerous, slippery floor.”
Plaintiff’s fall occurred at his second trip to the buffet. While there was carpeting around his table, the area around the buffet islands was some kind of ceramic tile, which the plaintiff claimed was “brightly shiny, like marble or shiny tile” and was “highly polished.”
After serving himself his second helping, he was headed back to his table. The plaintiff claimed that he intentionally walked slowly on the tile floor because of how polished it was. He did not allege that there was any food, liquid, or any substance on the floor that caused him to fall. His allegation was that the defendants negligently maintained a dangerous condition, i.e., the slippery floor. Further, he contended that the mode of operation doctrine should apply and, hence, he should not be required to prove that the defendants had actual or constructive notice of the dangerous condition. Rather, their negligence should be inferred.
The plaintiff failed to provide any expert opinion that the floor itself was dangerous. The defendants filed for summary judgment based upon the plaintiff’s failure to proffer that any substance on the floor caused his fall and the lack of an expert report to opine that the floor was dangerous due to its slipperiness. The trial court agreed with the defendants’ arguments, rejected the plaintiff’s claim that the mode of operation would apply, and granted the motion for summary judgment.
Upon appeal, the Appellate Division affirmed, upholding the dismissal of the complaint. It noted that it is the plaintiff’s burden to prove negligence. While the defendants had a duty to maintain a safe premises for their customers, including discovering and eliminating dangerous conditions, the plaintiff failed to offer any proof that the defendants breached their duty. The Appellate Division ruled that expert testimony would be needed to opine that the floor was inherently dangerous due to its slippery condition. The mere fact that plaintiff slipped and fell was insufficient to establish this claim.
The Appellate Division also rejected the plaintiff’s claim that the mode of operation would apply. The Court pointed out that, while the mode of operation doctrine relieves the plaintiff of the need to prove that the defendants had notice of a dangerous condition, the plaintiff must still prove that there was a dangerous condition. Further, the plaintiff must prove that the dangerous condition arose from the defendants’ self-service nature of its business.
Here, the plaintiff failed to offer any proof that any food, debris, or liquid on the floor created a dangerous condition. Although plaintiff fell near the buffet islands, he presented no proof that the surface near the buffet islands was any different than any other area of the restaurant that had a hard surface. Hence, he was unable to present a nexus to the defendants’ self-service nature of its business and his injury – which was fatal to pursuing a mode of operation claim.
