Jacquelin Arroyo v. Durling Realty, LLC.
433 N.J. Super. 238
| N.J. Super. Ct. App. Div. | 2013Background
- Plaintiff Arroyo slipped on a discarded plastic phone calling card on the sidewalk outside Durling Realty's Quick Chek in Wantage after purchasing items on May 16, 2010.
- The incident occurred around 10:00 p.m. with the outside area brightly lit.
- Plaintiff alleged the card created an unreasonable dangerous condition and was potentially foreseeably discarded from a self-service display.
- Defendant asserted routine maintenance and cleaning of the sidewalk and surrounding area, with no known prior notice of the card.
- Plaintiff offered a liability expert criticizing maintenance; defendant challenged the expert as lacking objective basis and admissibility.
- The trial court granted summary judgment for defendant, rejecting premises-liability and mode-of-operation theories; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant had notice of the card on the sidewalk | Arroyo argues notice is presumed from the dangerous condition. | Durling asserts no actual or constructive notice. | No genuine notice issue; dismissal affirmed. |
| Whether defendant breached duty of reasonable care in sidewalk maintenance | Arroyo contends maintenance was inadequate (trash cans, sweeping). | Durling's procedures were reasonable and adequately followed. | No material facts showing breach; summary judgment proper. |
| Whether plaintiff's expert testimony created a triable issue | Expert opinions supported by experience are adequate. | Expert opinions were net opinions lacking objective basis. | Expert testimony insufficient; no triable issue. |
| Whether mode-of-operation liability applies | Case should apply mode-of-operation to create negligence inference. | Case does not fit mode-of-operation; card outside store not inside operation. | Mode-of-operation liability not applicable. |
| Whether the card-outside-store incident fits premises-liability framework | Condition on sidewalk caused by store operation. | No nexus between self-service purchase and sidewalk condition. | Ordinary premises liability with notice analysis governs. |
Key Cases Cited
- Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003) (notice required; not merely existence of condition)
- Brown v. Racquet Club of Bricktown, 95 N.J. 280 (1984) (duty to maintain premises safely)
- Sims v. City of Newark, 244 N.J. Super. 32 (1990) (dangerous condition requires notice for liability)
- Butler v. Acme Mkts., Inc., 89 N.J. 270 (1982) (premises-liability duty of care on invitee)
- O'Shea v. K. Mart Corp., 304 N.J. Super. 489 (App. Div. 1997) (mode-of-operation considerations in self-service contexts)
- Craggan v. Ikea USA, 332 N.J. Super. 53 (App. Div. 2000) (mode-of-operation appropriate where merchandise removal is self-service)
- Bozza v. Vornando, Inc., 42 N.J. 355 (1964) (early mode-of-operation application in busy operations)
- Wollerman v. Grand Union Stores, Inc., 47 N.J. 426 (1966) (mode-of-operation when open shelves lead to hazard)
- Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344 (2011) (net opinion inadmissible; need objective foundation)
- Polzo v. Cnty. of Essex, 196 N.J. 569 (2008) (net opinion vs. objective standards for expert testimony)