MARIA QUINONES VS. KOHL'S DEPARTMENT STORES, INC. (L-2396-18, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2879-19
MARIA QUINONES,
Plaintiff-Appellant,
v.
KOHL'S DEPARTMENT
STORES, INC.,
Defendant-Respondent.
_________________________
Argued August 17, 2021 – Decided September 2, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-2396-18.
William Pollack argued the cause for appellant
(William Pollack, PC, attorney; Jeffrey Zajac, on the
briefs).
Richard C. Bryan argued the cause for respondent
(Cipriani & Werner, PC, attorneys; Richard C. Bryan,
on the brief).
PER CURIAM
Plaintiff commenced this action against defendant Kohl's Department
Stores Inc. (Kohl's), alleging she had slipped and fallen on water on the floor of
Kohl's Clifton store. She appeals from an order granting summary judgment to
defendant and dismissing her claims with prejudice. Agreeing with the motion
judge that no genuine issues of material fact exist as to defendant's lack of actual
or constructive notice of the water that caused plaintiff's fall, we affirm.
I.
In her deposition, plaintiff testified she had fallen as she was walking
towards the checkout lane to get in line, with four to five people already ahead
of her. Before the fall, she did not see the water that caused her to slip; she saw
it after the fall. 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." She did not know the source of
the water. She did not see anyone spill it. She did not know how long it had
been on the floor before her fall.
In interrogatories, plaintiff was asked:
19. If you claim that the defendant made any
admissions as to the subject matter of this lawsuit, state:
(a) the date made; (b) the name of the person by whom
made; (c) the name and address of the person to whom
made; (d) where made; (e) the name and address of each
person present at the time the admission was made; (f)
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the contents of the admission; and (g) if in writing,
attach a copy.
20. If you or your representative and the defendant
have had any oral communication concerning the
subject matter of this lawsuit, state: (a) the date of the
communication; (b) the name and address of each
participant; (c) the name and address of each person
present at the time of such communication; (d) where
such communication took place; and (e) a summary of
what was said by each party participating in the
communication.
In response to both interrogatories, she answered, "[n]ot applicable." Plaintiff
certified those answers as being "true, to the best of [her] knowledge."
After the close of discovery, defendant moved for summary judgment,
contending plaintiff had no evidence defendant knew or should have known the
water was on the floor. In opposition to defendant's summary-judgment motion,
plaintiff submitted an affidavit containing new and different information from
what she had provided in her discovery responses and deposition testimony. In
her affidavit, she stated she already had been "in the checkout lane" when she
fell, not that she had been "walking to go get in line," which is how she described
her location when she fell during her deposition. In her affidavit, plaintiff stated
the Kohl's assistant store manager who had assisted her after the fall and who
had filled out the incident report had told her "he was sorry the accident occurred
since he had told the cleaning people to clean up that area a while ago before the
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accident happened, but they did not do it." During her deposition, plaintiff
testified about her conversation with the assistant store manager. In her
description of their conversation, she did not include any mention of that
statement. In the affidavit she stated she had not mentioned it previously
because she did not believe it was important.
In deciding the motion, Judge Vicki A. Citrino acknowledged the affidavit
but rejected it pursuant to Shelcusky v. Garjulio, 172 N.J. 185 (2002), finding
plaintiff had said nothing about the employee's purported statement in her
deposition testimony or discovery responses and that she had not provided any
plausible explanation for why she had not mentioned it previously. Noting the
undisputed fact that defendant did not sell water, the motion judge concluded
the mode-of-operation rule described in Prioleau v. Kentucky Fried Chicken,
Inc., 223 N.J. 245, 258-60 (2015), did not apply to defendant. 1 The motion judge
granted defendant's summary-judgment motion, holding the record contained
insufficient evidence to raise a genuine issue of fact as to whether defendant had
notice of the water spill and that no rational factfinder could conclude defendant
had actual or constructive notice of the water that caused plaintiff's fall.
1
On appeal, plaintiff did not renew the mode-of-operation argument she had
made in opposition to defendant's summary-judgment motion.
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On appeal,2 plaintiff contends the motion judge erred in rejecting her
affidavit and asserts genuine issues of material fact exist as to defendant's actual
and constructive notice of the water on the floor. She also argues defendant was
not entitled to summary judgment because it had spoliated evidence by not
retaining video footage that might have shown whether defendant knew or
should have known about the water.
II.
We review a grant of summary judgment using the same standard that
governs the trial court's decision. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018). Under that standard, summary judgment will be
granted when "the competent evidential materials submitted by the parties,"
viewed in the light most favorable to the non-moving party, show there are no
"genuine issues of material fact" and that "the moving party is entitled to
summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38
(2014); see also Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017); R.
4:46-2(c). "An issue of material fact is 'genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on the motion,
2
In much of her argument, plaintiff relies on federal trial court cases and
unpublished cases, which do not bind us. See R. 1:36-3.
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together with all legitimate inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of fact.'" Grande, 230 N.J. at
24 (quoting Bhagat, 217 N.J. at 38). We owe no special deference to the trial
court's legal analysis. RSI Bank, 234 N.J. at 472.
A.
New Jersey "[b]usiness owners owe to invitees a duty of reasonable or due
care to provide a safe environment for doing that which is within the scope of
the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563, (2003);
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993). That duty of due
care "requires a business owner to discover and eliminate dangerous conditions,
to maintain the premises in safe condition, and to avoid creating conditions that
would render the premises unsafe." Nisivoccia, 175 N.J. at 563; see also Troupe
v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 596, 601 (App.
Div. 2016). "Ordinarily an injured plaintiff . . . must prove, as an element of the
cause of action, that the defendant had actual or constructive knowledge of the
dangerous condition that caused the accident." Ibid.; see also Prioleau, 223 N.J.
at 257. The absence of actual or constructive notice of a dangerous condition
"is fatal to [a] plaintiff's claims of premises liability." Arroyo v. Durling Realty,
LLC, 433 N.J. Super. 238, 243 (App. Div. 2013).
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A business owner has constructive notice of a dangerous condition 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."
Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957);
see also Troupe, 443 N.J. Super. at 602. Constructive notice can be inferred
from the "characteristics of the dangerous condition giving rise to the slip and
fall" and from "eyewitness testimony." See Troupe, 443 N.J. Super. at 602; see
also, e.g., Grzanka v. Pfeifer, 301 N.J. Super. 563, 574 (App. Div. 1997) (finding
constructive notice where eyewitness noted the light had been out for a while) ;
Tua v. Modern Homes, Inc., 64 N.J. Super. 211, 220 (App. Div. 1960) (finding
constructive notice where wax on the floor had hardened around the edges); and
Parmenter, 48 N.J. Super. at 511 (finding "dirtiness" of water that caused the
plaintiff's fall "tended to be corroborative of the length of time it lay on the
floor"). The mere "[e]xistence of an alleged dangerous condition is not
constructive notice of it." Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law
Div. 1990).3
3
In her reply brief, plaintiff argues for the first time that the burden of proof
should be shifted to defendant on the issue of constructive notice due to the
purported "frequency of the water spillage." It is inappropriate and unfair to
raise new arguments on reply. See Borough of Berlin v. Remington & Vernick
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B.
Plaintiff argues her affidavit demonstrates a genuine issue of material fact
regarding defendant's actual notice of the water on the floor. The motion judge
correctly rejected the affidavit as a sham affidavit. In Shelcusky, the Court held
a trial court may reject an affidavit as a sham when the affidavit "patently and
sharply" contradicts earlier testimony, no "confusion or lack of clarity" existed
at the time the earlier testimony was given, the affidavit does not simply clarify
prior testimony, or when the contradiction is not "reasonably explained." 172
N.J. at 201-02; see also Hinton v. Meyers, 416 N.J. Super. 141, 150 (App. Div.
2010).
Plaintiff's affidavit, which was submitted after the close of discovery, is
not a mere clarification of her prior testimony but is a direct contradiction of it.
Her affidavit references an admission by defendant of actual notice of the water
that caused her fall. Her deposition testimony and certified interrogatory
answers are devoid of any such admission; in her certified interrogatory answers
plaintiff directly denied the existence of any such admission or statement.
Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001) (declining to decide issue
raised improperly for the first time in appellate reply brief). Moreover, we find
insufficient merit in that argument to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
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Nothing in the deposition transcript or responses to the clearly-worded form
interrogatories indicate any confusion or lack of clarity. The explanation she
gave in her affidavit for revealing the purported admission only in her post-
discovery opposition to defendant's summary-judgment motion and not in either
her deposition testimony or interrogatory responses – she did not believe
defendant's admission of actual knowledge was important – is not reasonable
given the critical importance of actual knowledge in slip-and-fall cases.
Plaintiff argues a genuine issue of fact exists as to defendant being on
constructive notice because "the accident and dangerous condition occurred
directly in the cash register area and could have been readily . . . discovered by
[d]efendant's cashiers." That argument also is premised on a direct
inconsistency between defendant's affidavit and prior deposition testimony. In
her affidavit, plaintiff changed her location at the time of the fall from "walking
to go get in line," with four to five people ahead of her to actually being "in the
checkout lane," thereby placing her and the water that caused the fall much
closer to the employees working at the registers. She gave no explanation for
that discrepancy in her affidavit. Her deposition testimony does not support the
argument that the accident "occurred directly in the cash register area" where it
"could have been readily . . . discovered" by the cashiers. Judge Citrino properly
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rejected plaintiff's affidavit as a sham and held no genuine issue of material fact
existed regarding defendant's lack of constructive notice of the water.
Moreover, well-settled law does not support a finding of constructive notice
based on the purported proximity of the accident to the cash-register area.
Plaintiff argues for the first time on appeal that defendant's spoliation of
video evidence prevented her from proving constructive notice. See Zaman v.
Felton, 219 N.J. 199, 226-27 (2014) (affirming our dismissal of a claim not
raised before the trial court); N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201
N.J. 328, 339 (2010) (finding that "issues not raised below will ordinarily not
be considered on appeal").
Plaintiff's spoliation argument is procedurally improper and substantively
without merit. "Spoliation of evidence in a prospective civil action occurs when
evidence pertinent to the action is destroyed, thereby interfering with the action's
proper administration and disposition." Aetna Life & Cas. Co. v. Imet Mason
Contractors, 309 N.J. Super. 358, 364 (App. Div. 1998) (quoting Hirsch v. Gen.
Motors Corp., 266 N.J. Super. 222, 234 (Law Div. 1993)); see also Cockerline
v. Menendez, 411 N.J. Super. 596, 620 (App. Div. 2010). Asked about in-house
cameras in plaintiff's supplemental interrogatories, defendant stated it was "not
in possession, nor has it ever been in possession, of any video of [p]laintiff's
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accident." In response to plaintiff's request for images in its possession
"depicting the happening of the subject accident," defendant responded "[n]ot
applicable." An assistant store manager testified the store had security cameras.
When asked if the security cameras would "depict if somebody slipped and fell,"
she responded "[n]ot necessarily. They're in motion so . . . " That testimony
does not establish spoliation; it does not establish that a video of plaintiff's
accident or the events leading up to it ever existed and was destroyed by
defendant.
Affirmed.
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