                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0967-12T3

JACQUELIN ARROYO,
                                           APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                                 OCTOBER 23, 2013
v.
                                                APPELLATE DIVISION
DURLING REALTY, LLC,

     Defendant-Respondent.
_______________________________

          Submitted October 8, 2013        -    Decided    October 23, 2013

          Before Judges Messano, Sabatino and Hayden.

          On appeal from the Superior Court of New
          Jersey, Law Division, Hudson County, Docket
          No. L-2282-11.

          Zavodnick, Perlmutter &              Boccia, L.L.C.,
          attorneys for appellant              (Christopher S.
          Byrnes, on the brief).

          Suzanne   D.      Delvecchio,         attorney      for
          respondent.

     The opinion of the court was delivered by

SABATINO, J.A.D.

     In this personal injury case, plaintiff Jacquelin Arroyo

appeals   the    trial   court's   grant       of   summary    judgment   to

defendant, Durling Realty, LLC.     We affirm.

     Defendant owns and operates a Quick Chek convenience store

in Wantage.     On May 16, 2010, plaintiff and her friend, who had
been camping nearby, went inside the store.                   It was around 10:00

p.m., although the area outside the store was brightly lit.

Plaintiff and her friend purchased coffee and a few other items,

and then left the store.

      According     to   plaintiff,       after     she     left    the     store,    she

slipped on a discarded telephone calling card, which was on the

sidewalk near the store entrance.              Plaintiff injured her knee as

a result of her fall, requiring medical treatment.

      Plaintiff      claims      in   this     negligence          action    that      the

presence     of    the   plastic      card    on     the    sidewalk        created     an

unreasonably dangerous condition.                   In support of her theory,

plaintiff notes that the phone cards are displayed on racks near

the   store's     cash   register     and     the    exit    doors.         Given     that

proximity, plaintiff argues, in essence, that defendant should

have foreseen that the purchased cards would be taken out of the

store, immediately used, and discarded on the sidewalk.

      Defendant's store manager stated in his deposition that the

front   of   the    store   is    swept      for    cigarette      butts     and    other

miscellaneous debris ten to fifteen times daily, and that the

entire front sidewalk and parking lot are swept twice each day.

In addition, he indicated that at the end of each shift, the

employees are required to sweep the area outside and make sure

that it is clean.        The area is also vacuumed every two or three




                                          2                                    A-0967-12T3
days.     On the night in question, a shift ended at 10:00 p.m.,

shortly before plaintiff and her friend arrived.                             There is no

proof that any store employee was aware of the presence of the

card on the sidewalk in advance of plaintiff's mishap.

       Plaintiff     retained      as   a   liability        expert     a    construction

consultant, who opined that the store should have had handy

trash cans at the exit and also a regular sweeping schedule.                               In

addition, plaintiff argues that the store is liable under a

mode-of-operation theory.

       After    considering        these     arguments,         the     motion        judge,

Lourdes I. Santiago, J.S.C., granted defendant summary judgment

and dismissed the complaint.                    The judge rejected plaintiff's

theories of liability.            In her oral opinion, the judge concluded

that plaintiff had failed to "present evidence that the phone

card    that    caused      the    slip     and       fall   was      present       for    an

unreasonable amount of time," and that therefore "no genuine

issue of material fact [existed such that] a rational jury could

find for the plaintiff."            The judge also declined to extend the

principles      of   mode-of-operation             liability       to       this     factual

setting.

       Rule    4:46-2(c)     directs        that      summary      judgment        must    be

granted        "if    the     pleadings,              depositions,          answers        to

interrogatories       and    admissions          on    file,    together           with   the




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affidavits, if any, show that there is no genuine issue as to

any    material        fact    challenged    and      that    the       moving         party   is

entitled      to   a    judgment    .    .   .   as    a     matter         of    law."        The

appropriate        inquiry      must     determine         "'whether             the    evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.'"             Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d

202, 214 (1986)).             The court must review the evidence presented

"in the light most favorable to the non-moving party."                                    Id. at

540.     On appeal, we review summary judgment orders de novo,

utilizing      the      same    standards    applied         by    the       trial       courts.

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,

374 (2010).          Applying these principles, we agree that summary

judgment was properly granted here.

       We concur with Judge Santiago that, even if the record is

construed in a light most favorable to plaintiff, there is no

genuine issue as to whether defendant had actual or constructive

notice   of    the      presence    of    the    discarded         phone         card    on    the

sidewalk.      The absence of such notice is fatal to plaintiff's

claims   of    premises        liability.        Nisivoccia            v.   Glass       Gardens,

Inc.,    175   N.J.      559,    563     (2003);      Brown       v.    Racquet         Club    of




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Bricktown, 95 N.J. 280, 291 (1984).                    The mere "[e]xistence of an

alleged dangerous condition is not constructive notice of it."

Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990).

      The record lacks competent proof that defendant failed to

exercise     due    care    in    the       manner   in    which      it    maintained        the

sidewalk     outside       of    its    store.        We   acknowledge           that    "[t]he

proprietor     of    premises          to    which   the    public         is    invited      for

business purposes of the proprietor owes a duty of reasonable

care to those who enter the premises upon that invitation to

provide a reasonably safe place to do that which is within the

scope of the invitation."                   Butler v. Acme Mkts., Inc., 89 N.J.

270, 275 (1982).           This duty of care "requires a business owner

to discover and eliminate dangerous conditions, to maintain the

premises in safe condition, and to avoid creating conditions

that would render the premises unsafe."                       Nisivoccia, supra, 175

N.J. at 563 (citing O'Shea v. K. Mart Corp., 304 N.J. Super.

489, 492-93 (App. Div. 1997)).

      No witnesses or exhibits in the record contradict the store

manager's sworn testimony describing the Quick Chek's routine

maintenance and trash removal procedures.                        Those procedures have

not   been    shown        by    competent         evidence      to    be       unreasonable.

Moreover,     the     conclusory            statements      of     plaintiff's           expert

criticizing        those    procedures         are   not    grounded        in     identified




                                               5                                        A-0967-12T3
objective     standards,             and      thus        must     be        disregarded      as

inadmissible net opinion.                   Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 372-73 (2011).

      In    both       the    expert's        initial         report    and        supplemental

report, he presents opinions "from my [meaning, his] experience"

without ever stating what that experience is, or explaining how

it is reflective of objective standards about convenience store

operations or maintenance.                  Here, as in Pomerantz, plaintiff has

failed to show that her expert's opinions were "more than the

expert's personal views."                   Pomerantz, supra, 207 N.J. at 373.

The expert alludes to the fact that "[m]any stores" require an

hourly "check sheet" for maintenance procedures, but he provides

no   substantiation          for     this     assertion        and     does     not    indicate

whether    this        is    the    prevailing           or   common        practice    in    the

industry.          A    net        opinion     is    insufficient             to    satisfy     a

plaintiff's burden on a motion for summary judgment.                                   Polzo v.

Cnty. of Essex, 196 N.J. 569, 583-84 (2008); Smith v. Estate of

Kelly, 343 N.J. Super. 480, 497-98 (App. Div. 2001).

      We further agree with Judge Santiago that this is not an

appropriate        case      for      the     imposition         of     mode-of-operation

liability.     In certain distinctive instances, our courts have

eliminated a tort plaintiff's requirement of proof of actual or

constructive       notice          where,    "as     a    matter       of    probability,       a




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dangerous condition is likely to occur as the result of the

nature   of    the    business,      the        property's      condition,     or     a

demonstrable       pattern   of    conduct       or     incidents."    Nisivoccia,

supra, 175 N.J. at 563.            In such mode-of-operation cases, the

courts "have accorded the plaintiff an inference of negligence,

imposing on the defendant the obligation to come forward with

rebutting proof that it had taken prudent and reasonable steps

to avoid the potential hazard."               Id. at 563-64.       See also Model

Jury Charge (Civil), 5.20F(11), "Notice Not Required When Mode

of Operation Creates Danger" (1970).

      The Supreme Court's prior reported cases that have allowed

mode-of-operation       liability     have       typically      involved     hazards

located inside of a defendant's retail building.                      For example,

in   Bozza    v.   Vornando,      Inc.,    42    N.J.    355,   358   (1964),       the

plaintiff was injured after slipping on a slimy substance on the

floor of a self-service cafeteria.                There, the Court found that

there was a "reasonable probability that the dangerous condition

would occur" due to the fact that the cafeteria was a "very

busy" self-service operation that did not supply lids for its

beverage containers, nor require its patrons to use food trays.

Id. at 360-61.

      Several years later, in Wollerman v. Grand Union Stores,

Inc., 47 N.J. 426, 428 (1966), the Court applied the mode-of-




                                          7                                  A-0967-12T3
operation rule in a case where the plaintiff was injured after

slipping and falling on a loose string bean in the vegetable

section of a supermarket.           The vegetables were sold "from open

bins on a self-service basis," thus creating a likelihood that

"some will fall or be dropped to the floor."                    Id. at 429.

    Similarly,      in    Nisivoccia,       supra,       175    N.J.   at   561,      the

plaintiff was injured after slipping and falling on loose grapes

approximately     three      feet    from     the        checkout      aisle     of     a

supermarket.      The grapes "were displayed in open-top, vented

plastic    bags   that   permitted    spillage."               Ibid.    Because       the

grapes were packaged in open and air-vented bags that "invited

spillage," the Court found that "[i]t was foreseeable then that

loose grapes would fall to the ground near the checkout area,

creating    a   dangerous    condition      for     an    unsuspecting      customer

walking in that area."        Id. at 565.

    Our appellate opinions have extended the mode—of-operation

doctrine     to    include     self-service          businesses         other      than

cafeterias and supermarkets.         See, e.g., O'Shea, supra, 304 N.J.

Super. at 491-95 (holding that the plaintiff was entitled to an

inference of negligence against a self-service store when a golf

bag fell from a display, causing a significant facial injury);

Craggan v. Ikea USA, 332 N.J. Super. 53, 59, 61-63 (App. Div.

2000) (concluding that a mode-of-operation jury instruction was




                                        8                                      A-0967-12T3
proper where the plaintiff had tripped on string provided to

customers in the store's loading area so that they could secure

their purchases to their vehicles).                      In Craggan, we noted that a

"unifying factor" between these cases and the supermarket cases

was "a mode of operation designed to allow the patron to select

and    remove          the     merchandise         from        the    premises       without

intervention from any employee of the storekeeper."                             Id. at 62.

       The present case is dissimilar.                         The phone card was not

found inside defendant's store, but instead was on a sidewalk

outside.          Unlike       the     self-service        cases      where      a   mode-of-

operation theory has been deemed viable, the retail chronology

here includes an interaction with a store employee after an item

has been taken by a customer from a self-service display.                                  The

patron who presumably bought the phone card would have had to

take   it    off       the    display      rack,   present       it   to    a    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.

       Furthermore, it cannot be reasonably asserted here that the

convenience store's "method of doing business," see Nisivoccia,

supra,      175    N.J.       at    564,   created       the    hazard     encountered      by

plaintiff         on    the        sidewalk.       The     transaction          between    the




                                               9                                     A-0967-12T3
purchaser of the phone card and the store was fully concluded at

the time of purchase.         The purchased item did not have to be

prepared for removal from the premises.               What the purchaser

chose to do with the card after leaving the store was not an

integral feature of the store's retail operation.            Consequently,

there would have been no principled basis to apply the special

elements of a mode-of-operation jury instruction here if the

case   had   gone   to    trial.      Instead,    ordinary   principles     of

premises     liability,    including    the   requirement    of    actual   or

constructive notice of a dangerous condition on the sidewalk,

would pertain.

       Lastly, we also find it significant here that a phone card

is not necessarily going to be used and discarded immediately by

its purchaser.      The card stores a designated amount of calling

minutes.      Those stored minutes conceivably can be applied to

multiple calls, depending upon the length of the calls and the

amount of time purchased.          Because the card contains such stored

value, it is not debris that would invariably be tossed aside

when   the   card   purchaser      leaves   the   store.     Cf.   Kedia    v.

Brookshire Grocery Co., 752 So. 2d 944, 946-48 (La. Ct. App.

1999) (in which the plaintiff successfully established a grocery

store's liability after slipping and injuring herself on a wet

promotional leaflet distributed at the store, because the store




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management "should have foreseen the possibility that customers

would discard [such leaflets] throughout the store").

    Affirmed.




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