                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1687-14T4

ANNETTE TROUPE,
                                             APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                                January 26, 2016
v.                                             APPELLATE DIVISION

BURLINGTON COAT FACTORY
WAREHOUSE CORPORATION,

     Defendant-Respondent.
________________________________________

           Submitted December 7, 2015 – Decided January 26, 2016

           Before Judges Sabatino and Suter.

           On appeal from Superior Court of New Jersey,
           Law Division, Middlesex County, Docket No.
           L-8271-12.

           Kelso and Bradshaw, attorneys for appellant
           (Patrick J. Bradshaw, on the brief).

           Reger Rizzo & Darnall, LLP, attorneys for
           respondent (Richard M. Darnall and Thomas M.
           Krick, on the brief).

     The opinion of the court was delivered by

SUTER, J.S.C. (temporarily assigned).

     Annette Troupe appeals the dismissal of her slip and fall

complaint following a motion for summary judgment by Burlington

Coat Factory Warehouse, Inc. (Burlington).             We affirm because,

lacking   any   actual   or   constructive    notice    of   the    dangerous
condition,       Burlington    did   not       breach    the    duty    of   care    to

plaintiff as its invitee.             We hold as well, by applying the

Supreme Court's recent decision in Prioleau v. Kentucky Fried

Chicken, Inc., 223 N.J. 245 (2015), that the mode-of-operation

rule does not apply here, where the berry on the floor that

apparently caused the fall was not significantly connected with

any self-service component of Burlington's business.

                                          I.

      On   the    afternoon    of    April      22,     2011,   plaintiff    Annette

Troupe and her sister entered Burlington Coat Factory in the

Middlesex Mall and proceeded to the "Baby Depot" section in the

back of the store.       Plaintiff's right foot slipped on an unseen

berry in the aisle, causing her to fall and seriously injure her

knee and back.       Investigation revealed there was no other fruit

in the vicinity and no one eating fruit.                  The berry left a tell-

tale purplish smear along the floor extending from where Troupe

started to slip to where she came to rest, leaving a "little

seed."     Troupe filed suit in December 2012.

      Discovery     revealed    that      an    outside     service      cleaned    the

store every morning before it opened.                    Aside from that, there

was   no   periodic    sweeping      of    the    floors,       but    employees    who

dropped or saw something on the floor would pick up what was

there.     The baby department required about the same amount of




                                          2                                  A-1687-14T4
cleaning as the other departments, according to the former store

manager.

       Troupe's liability expert issued a report that was critical

of Burlington for its lack of periodic inspections.                             He said

because       Burlington        sold        baby    and       children's       clothing,

"Burlington . . . should have foreseen, that at various times

those babies and children would be doing the things that babies

and    children      normally       do,     including     eating     snacks,   drinking

drinks,      and   dropping        things    onto   the    floor."      This    posed    a

"substantial         risk     of     injury."           The    expert    opined     that

Burlington's failure to inspect was a "substantial contributing

cause of Ms. Troupe's fall."

       Burlington's         motion    for    summary      judgment    was    granted    by

Judge Arthur Bergman, who found Burlington had not breached its

duty    of    care    because        there    was   no     evidence     of   actual     or

constructive notice by Burlington of the berry prior to Troupe's

slip and fall.          He also rejected application of the mode-of-

operation rule because the berry "wasn't anything that they're

selling."      Troupe appeals from that order.

                                             II.

       Where there is an appeal from a summary judgment decision,

we review the decision de novo, meaning that we apply the same

standards used by the trial judge. W.J.A. v. D.A., 210 N.J. 229,




                                              3                                 A-1687-14T4
237 (2012).        The question then is whether the evidence, when

viewed in a light most favorable to the non-moving party, raises

genuinely      disputed     issues        of    fact     sufficient         to     warrant

resolution by the trier of fact or whether the evidence 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, 540 (1995).

Applying    this     standard,       the        record     amply        supports      Judge

Bergman's finding there were no genuine issues of fact about

Burlington's      actual    or    constructive         notice      of    the     dangerous

condition prior to Troupe's fall.                 Further, the judge correctly

decided, as a matter of law, that the mode-of-operation rule

does not apply to these facts.

                                           A.

    Under New Jersey law, "[b]usiness owners owe to invitees a

duty of reasonable or due care to provide a safe environment for

doing   that      which    is    within    the     scope    of     the     invitation."

Nisivoccia v. Glass Garden, Inc., 175 N.J. 559, 563 (2003);

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 433 (1993).                                The

duty of due care to a business invitee includes an affirmative

duty to inspect the premises and "requires a business owner to

discover    and    eliminate      dangerous       conditions,       to    maintain       the

premises in safe condition, and to avoid creating conditions




                                           4                                       A-1687-14T4
that would render the premises unsafe."                     Nisivoccia, supra, 175

N.J. at 563.

       Owners of premises are generally not liable for injuries

caused by defects of which they had no actual or constructive

notice and no reasonable opportunity to discover.                                 Ibid.      For

that   reason,      "[o]rdinarily       an       injured    plaintiff         .    .    .   must

prove, as an element of the cause of action, that the defendant

had actual or constructive knowledge of the dangerous condition

that caused the accident."             Ibid.

       A   defendant    has      constructive        notice      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."            Parmenter v. Jarvis Drug Stores, Inc., 48

N.J. Super. 507, 510 (App. Div. 1957).                     Constructive notice can

be   inferred      in   various     ways.          The     characteristics             of    the

dangerous condition giving rise to the slip and fall, see, Tua

v. Modern Homes, Inc., 64 N.J. Super. 211, 220 (App. Div. 1960)

(finding constructive notice where wax on the floor had hardened

around     the    edges),   or    eyewitness        testimony,         see,       Grvanka     v.

Pfeifer, 301 N.J. Super. 563, 574 (App. Div. 1997), certif.

denied, 154 N.J. 607 (1998) (finding constructive notice where

eyewitness noted the light had been out for a while) may support




                                             5                                         A-1687-14T4
an   inference    of   constructive       notice    about    the     dangerous

condition.

     Here, the trial court was correct that Troupe did not show

there   was   actual   or     constructive   notice     of   the     dangerous

condition of the premises prior to her fall.            There was no proof

Burlington or any employee had actual knowledge about the berry

on the floor.     There were no eyewitnesses and nothing about the

characteristics of the berry that would indicate how long it had

been there.      There were no other berries in the vicinity.                No

one was found to have been eating berries in the area.                 Without

actual or constructive notice of the dangerous condition, the

trial judge was correct that Burlington did not breach its duty

to Troupe.

                                     B.

     Troupe contends the trial court erred in not applying the

mode-of-operation      rule    because    "the     mode-of-operation      that

created the hazard was the lack of any periodic inspection of

the floors during the business shopping day."                Most recently,

the Court has clarified the mode-of-operation rule in Prioleau,

supra, 223 N.J. at 262-63.         Prioleau involved a slip and fall

near the bathroom at a Kentucky Fried Chicken restaurant on

either grease tracked from the kitchen by employees or water

tracked into the store by customers on a rainy day.                Id. at 249.




                                     6                                A-1687-14T4
The trial record established that Prioleau's slip and fall was

"unrelated to any aspect of defendants' business in which the

customer     foreseeably    serves   himself     or    herself,      or   otherwise

directly engages with products or services, unsupervised by an

employee."      Ibid.      The Court held it was reversible error to

charge the jury on the mode-of-operation rule where there was no

connection between the slippery condition of the floor and the

self-service component of the business.               Ibid.

    In our case, Troupe encourages us to expand the mode-of-

operation rule beyond the narrow circumstances to which it has

been held to apply, claiming it should apply where the mode of

operation has to do with the store's cleaning schedule because

it was foreseeable that food items would be brought into the

children's department and then dropped on the floor by parents

or children.     We decline to do so because this misconstrues the

rule in a manner that is inconsistent with Prioleau.

    To begin with, the mode-of-operation rule is a "special

application of foreseeability principles" because of the risks

posed   by    self-service    and    "not   a   general       rule   of    premises

liability."      Id. at 338.        When the rule applies, it "relieves

the plaintiff of the burden of proving actual or constructive

notice of the dangerous condition."             Ibid.    It "gives rise to an

inference of negligence, shifting the burden of production to




                                       7                                   A-1687-14T4
the defendant, who may avoid liability if it shows that it did

all that a reasonably prudent man would do in the light of the

risk of injury the operation entailed."               Ibid. (quotations and

alterations omitted).        However, "the mode-of-operation doctrine

has   never     been   expanded   beyond   the    self-service    setting,    in

which    customers     independently   handle      merchandise    without    the

assistance of employees or may come into direct contact with

product displays, shelving, packaging, and other aspects of the

facility that may present a risk."               Id. at 337-38.     The Court

observed that what is important is "a nexus between self-service

components of the defendant's business and a risk of injury in

the area where the accident occurred."            Ibid.

      In applying these principles, we agree with Judge Bergman

the mode-of-operation rule does not apply to the facts in this

case.     Here,    the   accident   did    not    involve   any   self-service

component of Burlington's business.              The slip and fall occurred

in an aisle, not in an area of clothing racks or "facilities

traditionally associated with self-service activities."                  There

was no demonstrable nexus between the self-service component of

Burlington's business, namely selling clothes and other non-food

items, and the risk of a customer slipping on a berry in the

aisle.    See Arroyo v. Durling Realty, 433 N.J. Super. 238, 246

(App.    Div.    2013)   (rejecting    a   plaintiff's      mode-of-operation




                                       8                              A-1687-14T4
theory of liability where the nexus between plaintiff's fall

outside of a convenience store on a discarded phone card and the

store's    self-service       rack    offering    such    cards    for    sale    was

"extremely attenuated").         Troupe did not show that the fruit had

anything to do with Burlington's business.

    Troupe's expert report is not illuminating because it does

not address the mode-of-operation rule as our Supreme Court has

described it in Prioleau.              Mode-of-operation liability is not

created merely because a store's cleaning schedule is allegedly

inadequate.       Instead, such a theory of liability requires that

the dangerous condition arise from a self-service characteristic

of the store's operations. Prioleau, supra, 223 N.J. at 337-38.

    To decide this case, we do not need to predict how the

mode-of-operation rule will be applied to the myriad of future

cases involving businesses that have self-service components.

For our decision, because the berry in the children's department

aisle     had    no   demonstrable      connection       with     any    aspect    of

Burlington's      self-service       business,    the    rule   simply    does    not

apply.    See Nisivoccia, supra, 175 N.J. at 565 (finding mode-of-

operation       instruction    appropriate       where    customer      slipped   on

grape near checkout in supermarket that sold grapes in plastic

bags open at the top).




                                         9                                 A-1687-14T4
    The Supreme Court has given us the principles that are to

guide   us    in    our   application        of    the    mode-of-operation      rule.

Troupe proposes an expansion that would swallow the rule by, in

effect,      shifting     the    burden       of    production     to   self-service

businesses     to    show    what    conduct         by   their   patrons    was     not

foreseeable.        However, for the rule to apply as the Court has

explained, it is the patron who must first show a clear nexus

between the self-service component of the business and "a risk

of injury in the area where the accident occurred."                       Id. at 262.

That nexus was not shown here, which precludes application of

the mode-of-operation rule.

    Because        Troupe   failed      to    show    Burlington    had     actual   or

constructive notice of the berry in the aisle, and because the

mode-of-operation         rule   does     not      apply,   the   trial     court    was

correct in granting Burlington's motion for summary judgment.

    Affirmed.




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