A Capehart Scatchard Blog

Court Refuses to Apply Mode of Operation Doctrine to Landlord/Tenant Slip and Fall Case

By on July 29, 2022 in Negligence with 0 Comments

Plaintiff Atef Kamel slipped and fell down steps in his apartment building’s stairwell while he was taking out his recycling.  He claimed that his slip and fall was caused by a combination of an unknown, oily liquid on the floor and a broken light in the stairwell.  The issue in Kamel v. Panyork Group, 2022 N.J. Super. Unpub. LEXIS 721 (App. Div. May 2, 2022) was whether the defendant apartment building owners could be liable for the injuries suffered in the fall.  Specifically, the court had to resolve whether the defendants had constructive notice of the alleged defects that caused the accident, as well as whether the mode of operation doctrine should be expanded to fit the landlord/tenant relationship. 

The plaintiff was a residential tenant in the building owned by the defendants Panyork Group Inc. and Panyork Gibraltar Tower, Inc.  At the time of the accident, all of the tenants were precluded from using the building’s elevators because of an elevator modernization project.  Tenants were only permitted to use the elevators with the assistance of building staff.  They were requested to dispose of their own recycling in designated areas but also had the option of leaving the recycling in trash rooms on their respective floors.

The superintendent of the building, Jose Lopez, oversaw the maintenance of the apartment building.  He inspected the stairwells about four times a day regularly because he and his assistant use the stairs themselves.  The stairwell was also inspected every day between 9:00 and noon when they took out the garbage.  On the date of the accident, he finished his work at about 8:00 p.m. and did not detect any spills in the stairwell and the lights were functioning properly.  The stairwell was last inspected at 4:00 p.m. and his assistant inspected it again at 6:00 p.m.

The plaintiff’s accident occurred at about 10:40 p.m. as he was traversing the building stairwell.  As a result of the fall, he injured his neck and underwent a cervical decompression and fusion.  He sued the apartment buildings owners for his injuries, claiming that they were negligent in the maintenance of the property.

The defendants filed for a summary judgment, which was granted by the trial court.  The trial court judge explained his ruling by stating that the plaintiff did not offer any evidence that could “establish when the alleged oily substance occurred, or when the stairwell light was damaged.”  Further, the plaintiff did not offer an expert to testify about apartment building maintenance or to offer guidelines about a standard for inspections or their frequency.

This decision was appealed to the Appellate Division. The issues on appeal were whether the plaintiff had presented sufficient proof to establish constructive notice of the condition and/or whether the mode of operation standard should be applied to the circumstances of this accident.

The Appellate Division noted that for the plaintiff to establish a prima face case of negligence, he had the burden to establish that the owner of the property breached its duty to discover and eliminate dangerous conditions and to maintain the premises in a safe condition.  The Court specifically stated that “owners of a premises are generally not liable for injuries caused by a defect if they have no actual or constructive notice and no reasonable opportunity to discover the defect.”  Constructive notice has been defined by the case law as existing “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.”

The Appellate Division agreed with the trial court that the plaintiff’s claim failed because “plaintiff had not demonstrated that defendants had actual or constructive notice of either the spilled liquid or the broken light in the stairwell.”  The Court noted that it was the plaintiff’s burden to prove that had the defendants inspected the stairwell, they would have found the dangerous condition and fixed it in a reasonable period of time. 

Under the facts of this case, the Appellate Division found that the apartment complex had inspected the stairwell that Friday afternoon and there was nothing wrong with the stairwell.  No other tenants had reported anything wrong with the stairwell and there were no witnesses who could testify to the fact that defendants had constructive notice of the alleged conditions that the plaintiff claimed caused the accident.

The Appellate Division also rejected the plaintiff’s argument that the mode of operation standard should be expanded to fit the landlord/tenant relationship. (If the mode of operation standard applied, the plaintiff would be relieved of the obligation to prove notice.) The Court noted that this doctrine only applies in self-service situations and where the plaintiff’s accident bears a relationship to the self-service component of the defendant’s business.  The Appellate Division explained that the courts have never expanded the operation doctrine beyond the self-service setting.

The plaintiff argued that the tenants being asked to take out their own recycling constituted self-service.  The Appellate Division disagreed with that argument, finding that “this was a temporary solution to the elevators being out, not a core function of defendants’ business.”  Plaintiff had the option of leaving the trash on his floor but chose to take the stairs.  Hence, the Court found that the mode of operation doctrine did not apply.  Accordingly, the plaintiff was not relieved of the obligation of proving actual or constructive notice of the alleged dangerous condition that caused his accident. 

Thus, the Appellate Division agreed with the trial court’s decision and affirmed the summary judgment in favor of the defendant apartment owners, dismissing the case. 

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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