Premises Liability Case Dismissed Against Supermarket Due To Plaintiff’s Failure To Prove Constructive Notice of Spill

The plaintiff Beverly Jackson slipped and fell on a quarter size dollop of shampoo from a bottle that had just fallen from the shelf in the pharmacy department of the defendant supermarket.  Based upon video evidence, this shampoo had fallen on the ground three minutes before her fall.  In Jackson v. ShopRite of Ewing, 2019 N.J. Super. Unpub. LEXIS 2661 (App. Div. December 31, 2019), the issue is whether the three minutes that elapsed between the spill and the plaintiff’s fall created constructive notice of the condition as to the supermarket.

The essential facts of the case were captured on the ShopRite surveillance video.  The video showed a man and two teenagers, walking through the pharmacy section of the store.  Shortly after they passed a product display, a plastic bottle fell onto the floor, dislodging its cap.  One of the teenagers returned the bottle to the shelf and the man restored the cap.  Three minutes later, the plaintiff walked through the same area, slipped and fell.  The parties agreed that she had fallen on a quarter size dollop of Herbal Essence Shampoo from the bottle that had just fallen from the shelf.

The plaintiff was a regular shopper at the supermarket.  She testified at her deposition that she had shopped at the store every day for 30 years and had never seen anything on the floor or ever had trouble with her footing.  The store, however, had no written policy governing inspections or addressing spills.  The ShopRite’s full time Loss Prevention Specialist testified, however, at his deposition that each store conducts monthly safety meetings with management and different store employees to review any incident that had occurred in the prior month.  Employees are instructed to immediately clean up any spill or wetness on the floor or to remain at the spill until maintenance personnel arrived to clean it up.

At the conclusion of discovery, the ShopRite moved for summary judgment, arguing that the plaintiff failed to carry her burden to show that the store had actual or constructive notice of the shampoo on the floor.  The trial court judge granted the motion.  The judge found that there was no dispute over the store’s lack of actual notice and concluded that the three minutes that elapsed between the spill and the plaintiff’s fall was insufficient to create constructive notice.

Upon appeal, the plaintiff argued that whether three minutes was sufficient to provide constructive notice of the spill was a genuine issue of material fact that the jury should have decided, as was whether the store reasonably inspected the premises for dangerous conditions and whether it failed to have and implement safety policies and procedures.  However, the Appellate Division disagreed with this argument.

Based upon premises liability law, the ShopRite owed the plaintiff as a business invitee “a duty of reasonable care to guard against any dangerous conditions on its property that the owner either knows about or should have discovered.”  Further, that standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions.

The Appellate Division pointed out that the absence of actual or constructive notice of the dangerous condition “is generally fatal to a plaintiff’s claim of premises liability.”  Pursuant to the undisputed facts, the defendant was without actual notice of the spilled shampoo upon which the plaintiff slipped.  Further, there was no dispute that the shampoo was on the floor for only three minutes before the plaintiff encountered it, which the Court found was not enough time to give rise to constructive notice.

Under New Jersey case law, the Court noted that “a defendant has constructive notice when a 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 pointed out that the plaintiff offered nothing to suggest that those three minutes during which the shampoo remained on the floor of the pharmacy section “provided the supermarket a reasonable opportunity to discover it and remove it, no matter how diligent its employees.”

Further, the Court failed to understand how the absence of a written policy for inspecting and correcting such spills should change the analysis.  The Appellate Division noted that the plaintiff offered nothing to contradict the testimony of the ShopRite’s Loss Prevention Specialist that the store conducted regular safety meetings and that its employees were instructed to clean up spills immediately and not leave them unattended.  Further, the Court noted that plaintiff’s own daily visits for over 30 years, during which time she had never seen anything left on the floor, “do not suggest the lack of a written policy has led to a failure to exercise reasonable care and maintenance of the store.”            

Based upon the facts of this case, the Appellate Division agreed with the trial court’s decision.  It found that the plaintiff had failed to establish a prima face case of premises liability, which entitled the defendant to a summary judgment dismissing the complaint.  Hence, the Appellate Division affirmed the trial court’s dismissal.

Tags: notice, premises liability