                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3454-15T2

ROBERT MARQUESS,

        Plaintiff-Appellant,

v.

AVALON COUNTRY CLUB and
SPOTLESS CLEANING SERVICES
OF OCEAN CITY,

     Defendants-Respondents.
___________________________________

              Submitted April 4, 2017 – Decided June 2, 2017

              Before Judges Ostrer and Vernoia.

              On appeal from the Superior Court of New
              Jersey, Law Division, Cape May County, Docket
              No. L-439-14.

              David K. Cuneo, attorney for appellant.

              Mitchell S. Berman, attorney for respondent
              Avalon Country Club.

              Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy,
              P.C., attorneys for respondent Spotless
              Cleaning Services (Timothy P. Mullin, on the
              brief).

PER CURIAM
     Plaintiff Robert Marquess appeals from the trial court's

order granting defendants' motion for summary judgment dismissing

his slip and fall complaint.     Plaintiff alleges he slipped and

fell in the shower area of the Avalon Country Club.    He contends

the club and its outside cleaner, defendant Spotless Cleaning

Services, negligently maintained the shower area.     Specifically,

he alleges that a white filmy substance left on the floor created

a slippery, dangerous condition after he showered.        However,

plaintiff testified that he only assumed the white film caused him

to fall.   In granting summary judgment, the trial court cited,

among other reasons, plaintiff's failure to establish that the

white film caused his fall.   We affirm on the same ground.

                                 I.

     We discern the following pertinent facts from the motion

record, viewed in the light most favorable to plaintiff as the

non-moving party.   Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995).   On September 14, 2012, at around 4:00 p.m.,

plaintiff used the club's showers, after finishing a round of

golf.   The shower area consisted of an open tiled area with five

or six shower-heads.     A six-inch-high threshold separated the

showers from another tiled area with sinks and toilets.       No one

else was in the shower area when he entered.   Plaintiff noticed a

white film on the dry tile "all over the shower" area, and on most

                                 2                            A-3454-15T2
of the area on the other side of the threshold.        He could not tell

whether   the   film   was   from   soap   or   a   cleaning   material.

Nevertheless, it was not slippery when he entered.

     Plaintiff showered alone for five to ten minutes.         He used a

foamy soap from a dispenser.    While he showered, he did not notice

if the floor was slippery.    However, once he finished, he took one

step toward the exit and slipped.          He fell to the floor and

suffered significant injuries.      He was unable to stand because the

floor had become too slippery.

     Asked how he knew the white film caused him to slip, plaintiff

admitted, "I don't.    I assume that's what it was . . . ."

     Plaintiff contended the club and the cleaners had actual or

constructive notice of a slippery condition.        Plaintiff's brother,

John Marquess, also golfed at the club that day.        He asserted, in

an affidavit, that he visited the locker room in the morning, to

use the toilet and clean his shoes.        He described the tiled area

outside the shower as "almost 'icy' and 'scummy' . . . ."1

Thereafter, he told a woman working in the pro shop about the

slippery conditions in the locker room's shower and urinal areas.

He alleged she took notes and told him she would try to find



1
 John Marquess alleged he was accompanied by another golfer, whom
he claimed stepped into the shower area. We disregard the other
golfer's alleged statements as hearsay. See R. 1:6-6.

                                    3                            A-3454-15T2
someone to address it.       However, the club's general manager

testified that there had been no complaints about the condition

of the showers.

     Monica Panesso, who owned and operated the cleaning service,

testified that she personally cleaned the men's shower area with

soap and vinegar every night after the club closed.      She would

also clean the area with bleach twice a week.   Panesso claimed she

rinsed the floor thoroughly, scrubbing it with a brush, and then

dried it with hand towels.     Each day, at around 2:00 p.m., she

checked the men's locker room and shower, emptied trash, removed

towels, discarded soap bars and shampoo bottles, and wiped any

dirty areas in the shower and elsewhere.   She was unaware of any

slippery conditions or soap residue in the showers.

     In granting defendants' motion, the court presumed that the

club had actual notice of a white film, based on John Marquess's

affidavit, but held the club was not on notice of a dangerous

condition.   Notwithstanding John Marquess's assertion that the

floor was slippery, the judge relied on plaintiff's statement that

it was not slippery before he showered.         Although plaintiff

asserted the shower area floor was slippery after he showered, the

judge held that plaintiff failed to establish that the white film

caused his fall.



                                 4                          A-3454-15T2
    On appeal, plaintiff presents the following points for our

consideration:

         A.      Summary Judgment Standard.

         B.      Defendants Had a Duty to Maintain the
                 Avalon Country Club Showers in A Safe
                 Condition and Eliminate Any Dangerous
                 Conditions Of Which They Had Actual or
                 Constructive Knowledge.

         C.      The Evidence is Sufficient to Permit a
                 Reasonable Fact-Finder to Conclude That
                 Defendants   Breached  Their  Duty   to
                 Maintain the Safe Condition of the Club
                 Locker Room Showers.

                 1.   Plaintiff's Inability to Identify
                      the Type of Scum That Covered the
                      Shower Floor or State Definitively
                      That It Caused His Fall Does Not
                      Warrant    Summary   Judgment   In
                      Defendants' Favor.

                 2.   Plaintiff's   Testimony  That   The
                      Floor Was Not Slippery When He
                      Entered the Shower Does Not Warrant
                      Summary Judgment In Defendants'
                      Favor.

         D.      Plaintiff    Has    Adduced    Sufficient
                 Evidence to Permit a Rational Fact-Finder
                 to Conclude Defendants Had Actual or
                 Constructive Notice of a Dangerous
                 Condition in the Locker Room.

         E.      Plaintiff    Has    Adduced    Sufficient
                 Evidence to Permit a Rational Fact-Finder
                 to Conclude That Spotless Cleaning
                 Services Had Notice of a Dangerous
                 Condition in the Locker Room.




                                  5                          A-3454-15T2
                                II.

     We review the grant of summary judgment de novo, applying the

same standard as the trial court.      Henry v. N.J. Dep't of Human

Servs., 204 N.J. 320, 330 (2010).     We determine whether the moving

party has demonstrated the absence of genuine issues of material

fact, and whether the trial court has correctly determined that

the movant is entitled to judgment as a matter of law, owing no

deference to the trial court's legal conclusions.      N.J. Dep't of

Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 507 (App. Div.),

certif. denied, 222 N.J. 17 (2015).

     "To sustain a cause of action for negligence, a plaintiff

must establish four elements: (1) a duty of care, (2) a breach of

that duty, (3) proximate cause, and (4) actual damages."    Townsend

v. Pierre, 221 N.J. 36, 51 (2015) (internal quotation marks and

citation omitted).    We focus on the element of causation.

     It is fundamental that a personal injury plaintiff must prove

that the defendant's conduct constituted a "cause-in-fact" of his

or her injuries.     Dawson v. Bunker Hill Plaza Assocs., 289 N.J.

Super. 309, 322 (App. Div.), certif. denied, 146 N.J. 569 (1996).

In routine tort cases, this is commonly referred to as "but for

causation."   Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996).

In complex, concurrent cause cases, a plaintiff must prove the

alleged tortfeasor's negligence was a "substantial factor" in

                                 6                            A-3454-15T2
causing the harm.    Id. at 419-20; Restatement (Second) of Torts §

433B(1) cmt. a (1965) (stating that a plaintiff "must make it

appear that it is more likely than not that the conduct of the

defendant was a substantial factor in bringing about the harm").

The mere possibility that a defendant's negligence may have caused

the injury is not enough.     Davidson v. Slater, 189 N.J. 166, 185

(2007).    The plaintiff may not prevail "'when the matter remains

one of pure speculation or conjecture, or the probabilities are

at best evenly balanced . . . .'"     Ibid. (quoting W. Page Keeton

et al., Prosser & Keeton on the Law of Torts, § 41, at 269 (5th

ed. 1984)); see also Kulas v. Public Serv. Elec. & Gas Co., 41

N.J. 311, 318 (1964) (stating that a plaintiff must present

evidence    that   "would   support   a   reasonable   inference,     as

distinguished from mere speculation, that defendant's negligence

in any way contributed to the cause" of the incident); Restatement

(Second), supra, § 433B(1) cmt. a ("A mere possibility of such

causation is not enough").

     In Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 74

(3d Cir. 1996), the Third Circuit addressed the causation issue

in a slip and fall case.       The plaintiff was injured when she

slipped and fell in a bathtub on a cruise ship.        Id. at 72.   The

court affirmed an order granting the defendant summary judgment,

notwithstanding that the plaintiff offered evidence that the non-

                                  7                            A-3454-15T2
slip abrasive strips on the tub's floor were negligently spaced,

so a person could situate his or her feet between the strips and

slip.   Id. at 75-76.      The court held that the plaintiff "may not

rely on the mere happening of the accident as prima facie proof

of causation in fact."       Id. at 74.     The plaintiff did not present

proof that she actually stood between the strips, or other proof

as to how she fell.       In fact, there were other possible causes of

plaintiff's fall; notably, she had just come from swimming and

sunbathing at the pool, and had covered her body with sunscreen.

Although   the    court   acknowledged      that   a   plaintiff   may     prove

causation by circumstantial evidence, the cruise ship plaintiff

failed to establish that it was more probable than not that the

allegedly negligently placed strips caused her injury.              Id. at 75.

     Similarly, in LaPlace v. Briere, 404 N.J. Super. 585, 603

(App. Div.), certif. denied, 199 N.J. 133 (2009), we affirmed the

trial   court's   grant    of    summary    judgment   notwithstanding        the

presumed negligence of a bailee of a horse that died.                         The

plaintiff failed to show that the negligence was a proximate cause

of the horse's death.           Ibid.   The plaintiff did not obtain a

necropsy upon the horse and, therefore, was unable to demonstrate

why the horse died — whether due to an underlying medical condition

or the negligent exercise of the horse.            Id. at 593-94.



                                        8                                A-3454-15T2
     As in Fedorczyk and LaPlace, summary judgment is warranted

here.   Even if we assume, for argument's sake, that there existed

a white film that created a slippery condition when wet, plaintiff

failed to establish that the wet white film caused his fall.        He

testified that he washed himself with soap for five to ten minutes,

rinsed, and slipped after taking a single step.         Just as the

plaintiff in Fedorczyk, supra, may have slipped because of wet,

sun-screen-covered feet and the horse in LaPlace, supra, may have

died of an underlying condition, plaintiff, here, may have slipped

because of the soapy water from his own shower or because of his

own inattentiveness.   Plaintiff bore the burden to establish that

it was more likely than not that the wet white film was a proximate

cause of his fall.   Yet, plaintiff admitted he did not know if he

slipped on the wet white film.       He simply assumed he did.   That

does not suffice.

     Plaintiff contends he was not obliged to identify the white

film as the cause of his fall.       However, even if it was not his

burden to demonstrate that the substance was the soapy residue of

shower users or the remnants of a cleaning product that was

inadequately rinsed, he still had the burden to demonstrate that

the substance — whatever it was — actually caused his fall.




                                 9                           A-3454-15T2
    Inasmuch as we conclude that plaintiff failed to satisfy the

essential element of causation, we need not address the issue of

actual or constructive notice.

    Affirmed.




                                 10                      A-3454-15T2
