                                 NOT FOR PUBLICATION WITHOUT THE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 cas e and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3327-18T2

THERESA YAKUP and
JOSEPH YAKUP,

          Plaintiffs-Appellants,

v.

VILLAGE SUPERMARKETS
INC., t/a SHOPRITE OF
ABSECON #633,

     Defendant-Respondent.
____________________________

                    Argued February 11, 2020 – Decided April 27, 2020

                    Before Judges Hoffman and Currier.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Somerset County, Docket No. L-0908-17.

                    Charles Z. Schalk argued the cause for appellants
                    (Savo, Schalk, Gillespie, O'Grodnick & Fisher, PA,
                    attorneys; Charles Z. Schalk, of counsel and on the
                    briefs).

                    James Nicholas Barletti argued the cause for
                    respondent (Gold Albanese Barletti & Locascio, LLC,
             attorneys; James Nicholas Barletti, of counsel and on
             the brief).

PER CURIAM

      Plaintiffs Theresa and Joseph Yakup appeal from a February 21, 2019

order granting summary judgment in favor of defendant Village Supermarkets

Inc., t/a ShopRite of Absecon #633, and a March 29, 2019 order denying

reconsideration. We affirm.

      We derive the facts from the summary judgment record. 1 Defendant owns

and operates a ShopRite supermarket in Absecon. There is a sidewalk running

the length of the front of the store. Immediately adjacent to the sidewalk is a

parking lot. There are shopping carts available for customers to use while in the

store and to take their groceries to the parking lot. The carts are lined up at the

entrance to the store or in a corral in the parking lot.

      On the day of these events, plaintiffs arrived at the ShopRite and parked

their car. Joseph stated that when he got out of his car there was a shopping cart

next to it. He explained: "I picked it up, took it up a little grade, you know, to

the ShopRite, then it levels off and I pushed it into the other carriages . . . ." As

Joseph started walking into the store, he "heard [Theresa] behind [him] running




1
  We were provided limited pages of the deposition transcripts of both plaintiffs
and Jeffrey Marinelli, a ShopRite representative.
                                        2
                                                                            A-3327-18T2
and [he] turned around and . . . [saw] her fall, . . . lung[ing] for the carriage . . . ."

Joseph was not sure if Theresa "lunged" for the same carriage he had just pushed

into the line of carts. He described seeing her with "[b]oth hands . . . out when

she lunged for that carriage and it started down the ramp and it just took off and

she just missed it and she fell."

      Theresa testified that as she started to go into the store, she saw a cart

rolling out of the "corner of [her] eye." She said she started to run after it and

"[she] must have tripped on something" and fell. Theresa could not identify any

specific defect in the pavement that might have caused her to fall. Defendant's

surveillance camera captured plaintiffs' movements after they exited their car

and headed into the store. 2

      Plaintiffs instituted suit against defendant, stating Theresa had "tripped

over uneven pavement in the parking lot" and fallen while chasing a shopping

cart. Plaintiffs alleged defendant was negligent in "not adequately maintaining

the common public areas of its property . . . ."

      After the completion of discovery, defendant moved for summary

judgment, arguing plaintiffs had not established the existence of a dangerous



2
  As part of our review of the record on appeal we have seen the video. Nothing
in the video materially contradicts the trial judge's factual findings. See State v.
S.S., 229 N.J. 360, 374-81 (2017) (clarifying the limited scope of appellate
review of factual findings based on video evidence).
                                          3
                                                                                A-3327-18T2
condition of which defendant had actual or constructive notice. Therefore,

plaintiffs could not demonstrate defendant breached its duty to them and could

not support their claim of negligence. In opposition, plaintiffs argued defendant

breached its duty to exercise reasonable care towards its invitees by failing to

provide a safe storage area for the shopping carts and creating a dangerous

condition – a grade in the pavement – that allowed runaway carts to go into

traffic. Plaintiffs contended it was for a jury to determine whether defendant

created a dangerous condition, and whether Theresa's accident was reasonably

foreseeable.

      On February 21, 2019, after hearing argument and reviewing the

surveillance video of the incident, the motion judge granted defendant's motion.

The judge concluded that defendant did not owe a duty to plaintiffs because they

had not established the existence of a dangerous condition that was reasonably

foreseeable.   Plaintiffs had not proffered any evidence demonstrating the

pavement had any defects that would have led to Theresa's fall or that there was

a safer manner to store the carts. In addition, the judge found plaintiffs needed

an expert to support their claim that "the pitch of the ramp or some improper

construction or design" created a dangerous condition and whether such a

condition was reasonably foreseeable by defendant.

      The judge reasoned:

                                        4
                                                                        A-3327-18T2
                  The simple facts here, as demonstrated in the
            video of the accident, are that [Joseph] pushed the
            subject shopping cart[] towards the store seconds
            before [Theresa's] accident and failed to appropriately
            secure the cart, resulting in it rolling down the
            sidewalk. There was no reasonable act . . . [d]efendant
            could have performed differently that would have
            prevented this accident.

      The judge also rejected plaintiffs' argument that the mode of operation

rule applied. He stated that the mere occurrence of an injury on a supermarket's

property does not automatically invoke the rule.      See Nisivoccia v. Glass

Gardens, Inc., 175 N.J. 559, 563 (2003). Furthermore, shopping carts were not

themselves dangerous instrumentalities.

      Plaintiffs' motion for reconsideration was denied in a written decision on

March 29, 2019. The judge clarified in this opinion that defendant owed a

general duty of care to maintain its property in a reasonably safe condition for

the use of its customers. However, although plaintiffs claimed the pavement

was uneven, which caused the shopping cart to roll, they had not identified a

specific defect, such as a hole or crack, in the pavement. Nor had plaintiffs

proffered expert testimony regarding any dangerous condition. Without an

expert, jurors would have to speculate whether the pavement was uneven at all,

and whether the alleged uneven surface constituted a dangerous condition.




                                        5
                                                                        A-3327-18T2
      The judge noted the video did not support plaintiffs' contentions. To the

contrary, he stated that "[t]he video confirms that . . . [Theresa] did not trip and

fall on a 'defect' in the pavement – which is a fact that she apparently has

acknowledged in her Answers to Interrogatories."

      Lastly, the judge determined the accident was not foreseeable. He stated

that the accident could have been avoided if Joseph had exercised care in

properly securing the cart in the corral and Theresa had exercised care in not

chasing after the cart and falling on the sidewalk, which did not have any

identifiable defects or dangerous conditions. The judge concluded "[d]efendant

had no duty to . . . [p]laintiff[s] to maintain or design its premises in a manner

that would foresee and avoid the string of events that occurred here."

      On appeal, plaintiffs argue the motion judge erred in finding they failed

to establish a prima facie case of negligence because defendant breached its duty

to plaintiffs as customers to maintain a shopping cart area with even pavement

to prevent carts from rolling into traffic.

      Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Green v. Monmouth Univ., 237 N.J. 516,

529 (2019) (citation omitted).      Thus, we consider "whether the competent

evidential materials presented, when viewed in the light most favorable to the

non-moving party in consideration of the applicable evidentiary standard, are

                                          6
                                                                           A-3327-18T2
sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 523 (1995).

      Summary judgment must be granted "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the 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 or order as a matter of law." R.

4:46-2(c). "If there is no genuine issue of material fact, we must then 'decide

whether the trial court correctly interpreted the law.'"         DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (citations omitted). We review issues of law de novo and accord no

deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster,

213 N.J. 463, 478 (2013).

      This court reviews the denial of a motion for reconsideration for an "abuse

of discretion." Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996)

(quoting CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 401 (4th

Cir. 1995)).

      Applying these standards, we conclude the motion judge properly granted

summary judgment and denied reconsideration.           Although the judge was



                                         7
                                                                          A-3327-18T2
mistaken in his first decision that defendant did not owe plaintiffs a duty, he

corrected that determination in the decision denying reconsideration.

      It cannot be disputed that defendant owed a duty to plaintiffs as its

customers. However, because plaintiffs have not established that defendant

breached its duty, we affirm.

      The duty of care a business owner owes to an invitee is well-established:

                   Business 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. The duty of due 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, 175 N.J. at 563 (citations omitted).]

      The mere fact that a person may have fallen, in and of itself, is insufficient

to establish liability against a defendant. Simpson v. Duffy, 19 N.J. Super. 339,

343 (App. Div. 1952). An injured plaintiff must ordinarily prove "that the

defendant had actual or constructive knowledge of the dangerous condition that

caused the accident." Nisivoccia, 175 N.J. at 563. However, a plaintiff need

not prove actual or constructive notice where, under the circumstances, there

was a reasonable probability that "a dangerous condition [was] likely to occur

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


                                         8
                                                                           A-3327-18T2
demonstrable pattern of conduct or incidents." Ibid. In that instance, under the

mode of operation rule, the plaintiff is entitled to 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.

      We do not agree that Nisivoccia supports the invocation of the mode of

operation rule here. In Nisivoccia, because food was offered on a self-service

basis in open bags and containers and could foreseeably fall or spill on the floor,

the mode of operation rule was applicable. Id. at 561 (loose grapes displayed in

open-top, vented plastic bags); see also Simpson, 19 N.J. Super. at 342 (loose

vegetables displayed in counter bins).

      The mere provision of shopping carts for use by customers via a self-

service cart corral does not raise a substantial risk inherent in defendant's mode

of doing business. Therefore, the mode of operation rule is not available here.

      Plaintiffs further assert the motion judge improperly distinguished the

present circumstances from those set forth in Meade v. Kings Supermarket-

Orange, 71 N.J. 539 (1976). There, a child was riding on a line of shopping

carts down an exit ramp at a supermarket. Id. at 540. The plaintiff was struck

by the carts as she exited the store and was propelled through a plate glass

window. Ibid. In reinstating the jury verdict in favor of the plaintiffs, the Court

                                         9
                                                                          A-3327-18T2
held there was sufficient expert testimony from which a jury could find the

design and construction of the ramp was defective and that the movement of

shopping carts in and around the supermarket premises was reasonably

foreseeable. Id. at 540-41.

      We agree the motion judge properly distinguished Meade from the

circumstances here. Plaintiffs have not identified any defect in the pavement

that caused Theresa's fall. Theresa stated she "tripped on something" but could

not pinpoint any specific defect in the pavement. There was no expert testimony

presented to establish the design or condition of the pavement created a

dangerous condition.

      We see the circumstances here as more akin to those in Znoski v. Shop-

Rite Supermarkets, Inc., 122 N.J. Super. 243 (App. Div. 1973). There, the

plaintiff was injured when he was struck in the back by a shopping cart outsid e

the doors of a supermarket. Id. at 246. The plaintiff argued that the defendant

should have anticipated the carelessness of customers using the carts and the

possibility of injury. Id. at 247. We found, to the contrary, that shopping carts

are not dangerous instrumentalities, but rather, are tools of convenience

uniquely suited for the purpose for which they have been furnished. Id. at 247-

48.



                                        10
                                                                        A-3327-18T2
      We said, "[e]very human activity involves some risk of harm, but the

reasonable probability of having other than a minor accident from the use of

carts in Shop-Rite's operation does not give rise to a duty to take measures

against it." Id. at 248. We held it was improper for the jury to speculate "without

any expert or other testimony" that the area around the store's doors was

improperly designed or constructed. Ibid.

      As plaintiffs have not established the existence of a dangerous condition

or that defendant had actual or constructive notice of it, they cannot demonstrate

defendant breached its duty to them.

      Affirmed.




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