Case Brief: LATORRACA v. ALADYN, INC., A-0992-19, 2021 WL 2099826 (N.J. Super. Ct. App. Div. May 25, 2021)

Parties:               Plaintiff: Francine Latorraca
Defendant: Aladyn, Inc.

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

Proc. Hist.:         Trial court granted summary judgment to defendant.  Plaintiff appealed arguing that defendant is responsible for the slippery conditions of the floor because of its “mode of operation.”  Plaintiff’s second argument states that even if a mode-of-operation theory fails in this case she is entitled to present her claims to the jury under ordinary principles of negligence.

Facts:                  Plaintiff was a customer at a McDonald’s restaurant owned and operated by defendant, Aladyn Inc.  After plaintiff ordered, but before leaving the counter, a young female to her left dropped a plastic cup.  This female was wearing a shirt with a McDonald’s logo but was apparently off-duty.  As plaintiff bent down to pick up the cup her right foot slipped, and she fell.  When plaintiff loosed on the floor near where she fell she saw a wrapped that was described as “wrinkly” and “yellow with a brown tint to it” and further stated that the wrapper felt like it was covered in grease.  Plaintiff didn’t think wrapper was there for a long time, stating that the person before her or maybe another person before dropped it.

Issue:                  Did the trial court abuse its discretion by admitting A.B.’s identification of defendant as a dying declaration; and whether the admission of A. B’s identification violated defendant’s right to confrontation.

Holding:              The trial court did not violate the defendant’s right to confrontation, nor did it abuse its discretion by allowing the admission of the hearsay evidence.

Rule:                    In order to prove a claim of negligence, a plaintiff must demonstrate:
1. Duty of care
2. Duty has been breached
3. Proximate causation and;
4. Injury.
Townsend v. Pierre, 221 N.J. 36, 51 (2015) citing Polzo v. Cnty of Essex, 196 N.J. 569, 584 (2008).  Plaintiff bears the burden of proving negligence Reivhert v. Vagholm, 366 N.J. Super. 209, 213 (App. Div. 2004), and must prove that unreasonable acts or omissions by the defendant proximately caused his or her injuries, Underhill v. Borough of Caldwell, 463 N.J. Super. 548, 556 (App. Div. 2020).

In a slip and fall action a plaintiff must prove by a preponderance of the evidence:
1. Defendant’s actual or constructive notice of a dangerous condition
2. Lack of reasonable care by the defendant
3. Proximate causation of plaintiff’s injury and;
4. Damages
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)

When the mode of operation doctrine applies, a plaintiff is relieved of demonstrating defendant’s actual or constructive notice of a dangerous condition on its premise.  The Model Jury Charges (Civil), 5.20F-11 “Mode of Operation Rule” (approved Mar. 2000, modified Apr. 2016) states that a plaintiff is relieved of proving that the defendant had actual or constructive notice of the dangerous condition only upon proving:

“ (1) the defendant’s business was being operated as a self-service operation; (2) that the plaintiff’s accident occurred in an area affected by the business’s self-service operations; and (3) that there is a reasonable factual nexus between the defendant’s self-service activity and the dangerous condition allegedly producing the plaintiff’s injury.” Model Jury Charges (Civil), 5.20F-11

Reasoning:         Trial judge soundly ruled that the facts do not support a mode-of-operation basis for liability.  Accepting as true plaintiff’s description of the incident, there is no evidence that her fall was produced by any self-service feature of defendant’s business.  She does not attribute the slippery surface to a beverage that another customer might have obtained from a self-service dispense and then spilled onto the floor.  No evidence indicates the wrapper was on the floor because of any self-service activities.  The ordinary negligence claim fails because the crucial element of actual or constructive notice of a dangerous condition is not suggested from the evidence.  Plaintiff’s own account the grease on the wrapper was “fresh”.  There is no evidence that a store worker saw the discarded wrapper before plaintiff slipped.

Disposition:       Affirmed.