Plaintiff Ann Brilliant slipped and fell inside an Outback Steakhouse but did not know how or why she slipped. She was unable to identify any specific hazardous condition of the floor or deviation from accepted safety standards. The issue in Brilliant v. Outback Steakhouse of Florida, LLC, 2025 U.S. Dist. LEXIS 87014 (D.N.J. May 7, 2025) was whether summary judgment should be granted to the defendant Outback Steakhouse due to plaintiff’s failure to identify why the floor was slippery and what caused her to fall.
Plaintiff had met her friend Darsell Pigford for dinner at an Outback Steakhouse in Deptford, New Jersey. As she was walking to her table, she slipped and fell, breaking her arm and leg.
She testified at her deposition that she did not notice any substance on the floor that caused her to slip. Rather, she guessed that “the floor was slippery because it had a wax residue on it that made it feel like a sheet of ice.” However, she denied seeing or feeling any wax residue on the floor. Plaintiff’s friend, Ms. Pigford, also testified in a deposition that she frequently ate at this Outback and that the floor always seemed slippery but, she was unaware of any particular condition that made the floor slippery. Although, on one of her prior visits, she had apparently alerted restaurant staff about the slipperiness of the floor.
At the conclusion of discovery, Outback moved for summary judgment, arguing that, as a matter of law, no reasonable jury could find that it negligently maintained its floor. The District Court found that plaintiff could not survive summary judgment “because she has failed to present evidence outside her and her witnesses’ own subjective characterizations that Outback maintained its floor negligently.”
The Court relied on prior New Jersey case law which held that “the mere fact that a plaintiff falls on a waxed floor is not enough to infer negligence; instead, the plaintiff has to show that the way the floor was waxed – in terms of the nature or quantity of the substance used, or in the matter or time of its application – was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises.”
Here, plaintiff failed to produce any evidence that the floor was negligently waxed, or that it was waxed at all. The Court also pointed to out of state decisions in which courts have held that a plaintiff cannot prevail on a negligence claim when she fails to offer any evidence that the floors were excessively slippery, “other than subjective characterizations about the appearance of the floor.”
Plaintiff had also argued that summary judgment should be denied because Outback failed to produce in discovery a completed opening and closing inspection checklist, as well as a completed facilities inspection checklist. Instead, Outback had only produced a blank version of the opening checklist. Plaintiff argued that defendant’s failure to preserve these records should create a negative inference that it either never created the records or that the records were destroyed because they were harmful for the defendant.
The District Court disagreed with that argument. Plaintiff had never objected in discovery to Outback’s failure to produce these completed versions of the checklist from the day of the accident. Further, the Court noted that production of the completed checklists, even if they did exist, would not create a triable dispute of fact. At most, the checklist would establish that inspections were conducted but not what if anything was observed during the inspections, let alone that any hazardous condition was or should have been detected.
The Court concluded that the undisputed evidence was that there was no admissible evidence of a dangerous hazard on the floor and, as such, the argument that any hazard could have been identified or remedied by an inspection procedure was speculative. Thus, the District Court granted summary judgment and dismissed the complaint.
