ROBERT MARQUESS VS. AVALON COUNTRY CLUB (L-439-14, CAPE MAY COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3454-15T2
ROBERT MARQUESS,
Plaintiff-Appellant,
v.
AVALON COUNTRY CLUB and
SPOTLESS CLEANING SERVICES
OF OCEAN CITY,
Defendants-Respondents.
___________________________________
Submitted April 4, 2017 – Decided June 2, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Cape May County, Docket
No. L-439-14.
David K. Cuneo, attorney for appellant.
Mitchell S. Berman, attorney for respondent
Avalon Country Club.
Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy,
P.C., attorneys for respondent Spotless
Cleaning Services (Timothy P. Mullin, on the
brief).
PER CURIAM
Plaintiff Robert Marquess appeals from the trial court's
order granting defendants' motion for summary judgment dismissing
his slip and fall complaint. Plaintiff alleges he slipped and
fell in the shower area of the Avalon Country Club. He contends
the club and its outside cleaner, defendant Spotless Cleaning
Services, negligently maintained the shower area. Specifically,
he alleges that a white filmy substance left on the floor created
a slippery, dangerous condition after he showered. However,
plaintiff testified that he only assumed the white film caused him
to fall. In granting summary judgment, the trial court cited,
among other reasons, plaintiff's failure to establish that the
white film caused his fall. We affirm on the same ground.
I.
We discern the following pertinent facts from the motion
record, viewed in the light most favorable to plaintiff as the
non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995). On September 14, 2012, at around 4:00 p.m.,
plaintiff used the club's showers, after finishing a round of
golf. The shower area consisted of an open tiled area with five
or six shower-heads. A six-inch-high threshold separated the
showers from another tiled area with sinks and toilets. No one
else was in the shower area when he entered. Plaintiff noticed a
white film on the dry tile "all over the shower" area, and on most
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of the area on the other side of the threshold. He could not tell
whether the film was from soap or a cleaning material.
Nevertheless, it was not slippery when he entered.
Plaintiff showered alone for five to ten minutes. He used a
foamy soap from a dispenser. While he showered, he did not notice
if the floor was slippery. However, once he finished, he took one
step toward the exit and slipped. He fell to the floor and
suffered significant injuries. He was unable to stand because the
floor had become too slippery.
Asked how he knew the white film caused him to slip, plaintiff
admitted, "I don't. I assume that's what it was . . . ."
Plaintiff contended the club and the cleaners had actual or
constructive notice of a slippery condition. Plaintiff's brother,
John Marquess, also golfed at the club that day. He asserted, in
an affidavit, that he visited the locker room in the morning, to
use the toilet and clean his shoes. He described the tiled area
outside the shower as "almost 'icy' and 'scummy' . . . ."1
Thereafter, he told a woman working in the pro shop about the
slippery conditions in the locker room's shower and urinal areas.
He alleged she took notes and told him she would try to find
1
John Marquess alleged he was accompanied by another golfer, whom
he claimed stepped into the shower area. We disregard the other
golfer's alleged statements as hearsay. See R. 1:6-6.
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someone to address it. However, the club's general manager
testified that there had been no complaints about the condition
of the showers.
Monica Panesso, who owned and operated the cleaning service,
testified that she personally cleaned the men's shower area with
soap and vinegar every night after the club closed. She would
also clean the area with bleach twice a week. Panesso claimed she
rinsed the floor thoroughly, scrubbing it with a brush, and then
dried it with hand towels. Each day, at around 2:00 p.m., she
checked the men's locker room and shower, emptied trash, removed
towels, discarded soap bars and shampoo bottles, and wiped any
dirty areas in the shower and elsewhere. She was unaware of any
slippery conditions or soap residue in the showers.
In granting defendants' motion, the court presumed that the
club had actual notice of a white film, based on John Marquess's
affidavit, but held the club was not on notice of a dangerous
condition. Notwithstanding John Marquess's assertion that the
floor was slippery, the judge relied on plaintiff's statement that
it was not slippery before he showered. Although plaintiff
asserted the shower area floor was slippery after he showered, the
judge held that plaintiff failed to establish that the white film
caused his fall.
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On appeal, plaintiff presents the following points for our
consideration:
A. Summary Judgment Standard.
B. Defendants Had a Duty to Maintain the
Avalon Country Club Showers in A Safe
Condition and Eliminate Any Dangerous
Conditions Of Which They Had Actual or
Constructive Knowledge.
C. The Evidence is Sufficient to Permit a
Reasonable Fact-Finder to Conclude That
Defendants Breached Their Duty to
Maintain the Safe Condition of the Club
Locker Room Showers.
1. Plaintiff's Inability to Identify
the Type of Scum That Covered the
Shower Floor or State Definitively
That It Caused His Fall Does Not
Warrant Summary Judgment In
Defendants' Favor.
2. Plaintiff's Testimony That The
Floor Was Not Slippery When He
Entered the Shower Does Not Warrant
Summary Judgment In Defendants'
Favor.
D. Plaintiff Has Adduced Sufficient
Evidence to Permit a Rational Fact-Finder
to Conclude Defendants Had Actual or
Constructive Notice of a Dangerous
Condition in the Locker Room.
E. Plaintiff Has Adduced Sufficient
Evidence to Permit a Rational Fact-Finder
to Conclude That Spotless Cleaning
Services Had Notice of a Dangerous
Condition in the Locker Room.
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II.
We review the grant of summary judgment de novo, applying the
same standard as the trial court. Henry v. N.J. Dep't of Human
Servs., 204 N.J. 320, 330 (2010). We determine whether the moving
party has demonstrated the absence of genuine issues of material
fact, and whether the trial court has correctly determined that
the movant is entitled to judgment as a matter of law, owing no
deference to the trial court's legal conclusions. N.J. Dep't of
Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div.),
certif. denied, 222 N.J. 17 (2015).
"To sustain a cause of action for negligence, a plaintiff
must establish four elements: (1) a duty of care, (2) a breach of
that duty, (3) proximate cause, and (4) actual damages." Townsend
v. Pierre, 221 N.J. 36, 51 (2015) (internal quotation marks and
citation omitted). We focus on the element of causation.
It is fundamental that a personal injury plaintiff must prove
that the defendant's conduct constituted a "cause-in-fact" of his
or her injuries. Dawson v. Bunker Hill Plaza Assocs., 289 N.J.
Super. 309, 322 (App. Div.), certif. denied, 146 N.J. 569 (1996).
In routine tort cases, this is commonly referred to as "but for
causation." Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996).
In complex, concurrent cause cases, a plaintiff must prove the
alleged tortfeasor's negligence was a "substantial factor" in
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causing the harm. Id. at 419-20; Restatement (Second) of Torts §
433B(1) cmt. a (1965) (stating that a plaintiff "must make it
appear that it is more likely than not that the conduct of the
defendant was a substantial factor in bringing about the harm").
The mere possibility that a defendant's negligence may have caused
the injury is not enough. Davidson v. Slater, 189 N.J. 166, 185
(2007). The plaintiff may not prevail "'when the matter remains
one of pure speculation or conjecture, or the probabilities are
at best evenly balanced . . . .'" Ibid. (quoting W. Page Keeton
et al., Prosser & Keeton on the Law of Torts, § 41, at 269 (5th
ed. 1984)); see also Kulas v. Public Serv. Elec. & Gas Co., 41
N.J. 311, 318 (1964) (stating that a plaintiff must present
evidence that "would support a reasonable inference, as
distinguished from mere speculation, that defendant's negligence
in any way contributed to the cause" of the incident); Restatement
(Second), supra, § 433B(1) cmt. a ("A mere possibility of such
causation is not enough").
In Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 74
(3d Cir. 1996), the Third Circuit addressed the causation issue
in a slip and fall case. The plaintiff was injured when she
slipped and fell in a bathtub on a cruise ship. Id. at 72. The
court affirmed an order granting the defendant summary judgment,
notwithstanding that the plaintiff offered evidence that the non-
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slip abrasive strips on the tub's floor were negligently spaced,
so a person could situate his or her feet between the strips and
slip. Id. at 75-76. The court held that the plaintiff "may not
rely on the mere happening of the accident as prima facie proof
of causation in fact." Id. at 74. The plaintiff did not present
proof that she actually stood between the strips, or other proof
as to how she fell. In fact, there were other possible causes of
plaintiff's fall; notably, she had just come from swimming and
sunbathing at the pool, and had covered her body with sunscreen.
Although the court acknowledged that a plaintiff may prove
causation by circumstantial evidence, the cruise ship plaintiff
failed to establish that it was more probable than not that the
allegedly negligently placed strips caused her injury. Id. at 75.
Similarly, in LaPlace v. Briere, 404 N.J. Super. 585, 603
(App. Div.), certif. denied, 199 N.J. 133 (2009), we affirmed the
trial court's grant of summary judgment notwithstanding the
presumed negligence of a bailee of a horse that died. The
plaintiff failed to show that the negligence was a proximate cause
of the horse's death. Ibid. The plaintiff did not obtain a
necropsy upon the horse and, therefore, was unable to demonstrate
why the horse died — whether due to an underlying medical condition
or the negligent exercise of the horse. Id. at 593-94.
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As in Fedorczyk and LaPlace, summary judgment is warranted
here. Even if we assume, for argument's sake, that there existed
a white film that created a slippery condition when wet, plaintiff
failed to establish that the wet white film caused his fall. He
testified that he washed himself with soap for five to ten minutes,
rinsed, and slipped after taking a single step. Just as the
plaintiff in Fedorczyk, supra, may have slipped because of wet,
sun-screen-covered feet and the horse in LaPlace, supra, may have
died of an underlying condition, plaintiff, here, may have slipped
because of the soapy water from his own shower or because of his
own inattentiveness. Plaintiff bore the burden to establish that
it was more likely than not that the wet white film was a proximate
cause of his fall. Yet, plaintiff admitted he did not know if he
slipped on the wet white film. He simply assumed he did. That
does not suffice.
Plaintiff contends he was not obliged to identify the white
film as the cause of his fall. However, even if it was not his
burden to demonstrate that the substance was the soapy residue of
shower users or the remnants of a cleaning product that was
inadequately rinsed, he still had the burden to demonstrate that
the substance — whatever it was — actually caused his fall.
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Inasmuch as we conclude that plaintiff failed to satisfy the
essential element of causation, we need not address the issue of
actual or constructive notice.
Affirmed.
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