The Appellate Division of New Jersey issued an opinion on October 23, 2013 that ranks among the few that vindicate commercial property owners. In the decision of Arroyo v Durling Realty, LLC, Judge Sabatino, speaking for the court, upheld an Order for Summary Judgment granted to the defendant store owner at the trial level.
The facts, briefly stated, were that plaintiff made a purchase from the defendant, a convenience store, at about 10 p.m. After leaving the store, the plaintiff slipped on a discarded telephone card, which was on the sidewalk near the store entrance. This store did sell such cards, from a self-service rack within the store.
The Appellate Division concluded that even in the light most favorable to the plaintiff on a motion for summary judgment, the defendant had no actual or constructive notice of the presence of the discarded phone card on the sidewalk. This proved fatal to plaintiff’s claim of premises liability.
In spite of the property owner’s duty to discover and eliminate dangerous conditions, to maintain the premises in a safe condition, and to avoid creating conditions that would render the premises unsafe, the court found that the store owner exercised reasonable care to maintain his premises, including the sidewalk area, with constant inspections and sweepings. The court also indicated that this was not a “mode of operation” case and stated that typically “mode of operation” cases involve hazards located inside of a defendant’s retail building. But unlike other “mode of operation” cases in self-service stores, here, “the retail chronology includes an interaction with a store employee after an item has been taken by a customer from a self-service display.” The person buying the phone cards would have had to take it off the display rack, present it to the cashier at checkout, had the card activated by the cashier, and paid for the card before taking it out of the store. “The nexus between the self service rack and the eventual presence of the card on the sidewalk outside is extremely attenuated.” Lastly, the court went on to state that it cannot be reasonably asserted here that the convenience store’s “method of doing business” created the hazard encountered by the plaintiff on the sidewalk. The purchase was concluded within the store and what the purchaser chose to do with the card after leaving the store was not an integral feature of the store’s operation.
The Appellate Division also found that plaintiff’s liability expert created his own liability theories that were not based upon any objective standards but were his “personal views” and therefore net opinions. His testimony was ruled inadmissible.
This may be the first Appellate decision ruling upon business owners’ liability where there was an in-store item that found its way to the store’s exterior premises.
For a copy of this decision, please contact Louis Niedelman, the author of this article, atlniedelman@cooperlevenson.com.
