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Plaintiff’s Slip And Fall Claim Dismissed Due To Her Failure To Prove Store Had Notice Of Water On Floor

By on October 22, 2021 in Negligence with 0 Comments

Plaintiff Maria Quinones slipped and fell on water on the floor of Kohl’s Clifton store.  She fell on water, described as a two foot long strip of water, as she was walking towards the checkout lane to get in line.  The issue in Quinones v. Kohl’s Department Stores, Inc., 2021 N.J. Super Unpub. LEXIS 2067 (App. Div. Sept. 2, 2021) was whether the defendant store had actual or constructive notice of the water on the floor, which was necessary for the plaintiff to prove her claim against the defendant store.

Plaintiff testified that she fell as she was walking towards the checkout lane to get in line, with four to five people already ahead of her.  Before she fell, she did not see the water that caused her to fall.  After she fell, 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.”  However, she did not know the source of the water, nor did she see anyone spill it.  She also did not know how long it had been on the floor before her fall.

At the trial court level, the defendant store moved for summary judgment.  It argued that plaintiff had no evidence that the defendant knew or should have known that the water was on the floor. 

In opposition to the summary judgment motion, plaintiff provided an affidavit containing new and different information for what she had provided in her discovery responses and in her deposition testimony.  In the affidavit, she stated that the Kohl’s assistant store manager who assisted her after the fall told her that “he was sorry the accident occurred since he told the cleaning people to clean up that area a while ago before the accident happened, but they did not do it.”  When the plaintiff testified in her deposition, she failed to mention any of that statement.  In her affidavit that she submitted, she claimed that she had not mentioned it “because she did not believe it was important.”

The trial court judge acknowledged the affidavit but rejected it as a “sham” affidavit.  Further, the trial court judge concluded that the mode of operation rule did not apply because the defendant did not sell water.  The trial court judge granted the defendant store’s motion for summary judgment, finding that there was no genuine issue of fact as to whether the defendant had actual or constructive notice of the water that caused plaintiff’s fall.

This appeal ensued.  The plaintiff argued that the trial court judge erred in rejecting her affidavit and claimed that there were genuine issues of material fact as to defendant’s actual and constructive notice of the water on the floor.

The Appellate Division noted that for a business owner to be held liable for a dangerous condition of its property, it must have actual or constructive of the dangerous condition that caused the accident.  With the absence of actual or constructive notice of the dangerous condition, that would be fatal to a plaintiff’s claim of premises liability.  For a business owner to be deemed to have constructive notice of the dangerous condition, it must have 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 judge that the affidavit was a sham affidavit and should not be considered.  It was not a mere clarification of her prior testimony but was a direct contradiction of it.  Further, the Appellate Division found that the plaintiff’s deposition testimony did not support the argument that the accident occurred directly in the cash register area but, rather, that it occurred as she was walking to get into line.  The Appellate Division also noted that “well-settled law does not support a finding of constructive notice based on the purported proximity of the accident to the cash-register area.” 

Hence, the Appellate Division upheld the trial court’s decision, dismissing the complaint.


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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 and 2021, 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.

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