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Store Found Not Liable For Slip And Fall Due To Melting Snow From Cart In Aisle

By on January 3, 2020 in Liability with 0 Comments

Plaintiff Johanna Cortes fell while she and her husband were shopping at BJ’s Wholesale Club.  She allegedly slipped and fell in a puddle of water about two feet wide, created by melting snow from a cart left in the aisle.  In the federal court case of Cortes v. BJ’s Wholesale Club, 2019 U.S. Dist. LEXIS 218133 (D.N.J. December 19, 2019), the issue was whether BJ’s could be liable for the plaintiff’s injuries based upon constructive notice of the hazard.

According to the record, there was no information as to where the cart came from, who placed it in the aisle, the length of time it had been there prior to the plaintiff’s fall, how much snow was on it, or how much had melted, or how long the puddle of water had been on the floor.  According to the plaintiffs, they had been in the store for about 30 minutes prior to the incident.  They did not see water in any other part of BJ’s, nor was there any evidence that BJ’s employees knew there was water in the aisle.  According to the evidence produced by the defendant, it had numerous safety protocols in place including: “morning and evening inspections which require a walkthrough of the entire premises; ongoing patrolling of the aisles; employee incentives to encourage attention to safety; and the assignment of ‘recovery’ personnel ‘responsible for making sure the aisles are clear’ and for alerting management to hazards.”

The Court noted that under New Jersey law, in negligence cases, a plaintiff must establish said defendant breached a duty of reasonable care, which constituted a proximate cause of plaintiff’s injuries.  Business owners have a duty of care that requires them to maintain a safe premises for their business invitees.  An injured plaintiff asserting a breach of duty must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.  To prove constructive notice, the plaintiff must prove that the “condition existed for such a length of time as reasonably to have resulted in knowledge of the condition, had the owner . . . been reasonably diligent.”

The District Court Judge found that there is no evidence that any of the Club’s employees had actual notice of the alleged dangerous condition.  Hence, the only question was whether BJ’s had constructive knowledge of the hazard.  The plaintiff, however, did not see the water before she fell and was unable to establish how long the cart was in the aisle, how much snow was on it originally, how much had melted or how long the puddle had been there.  Plaintiff admitted that she did not see any “water marks, tire marks, or foot marks” in the water or any other evidence that it had been walked through.  Plaintiffs did not allege that there were employees in the area who could have become aware of the hazard.

The Court noted that the record showed only that there was a puddle of water in one of the aisles that allegedly caused the plaintiff to slip.  There was no evidence that indicated precisely how long the cart had been in the aisle and who was responsible for its placement.  The judge found as an unsupported allegation, the plaintiff’s contention “that the cart had been allowed to remain in the aisle long enough for enough snow to melt to cause a 2 foot wide puddle to accumulate on the ground.”  The Court noted that even if that allegation was true, it failed to create a genuine issue of material fact as to defendant’s constructive knowledge of the hazard.  

Essentially, the Court found that there was no constructive notice because the plaintiff was unable to provide any evidence of how long the puddle had been present.  Accordingly, the defendant’s motion for summary judgment was granted and the complaint was dismissed.

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Betsy G. Ramos

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 25 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.

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