Arroyo v. Durling Realty, L.L.C., A-0967-12T3; Appellate Division; opinion by Sabatino, J.A.D.; decided and approved for publication October 23, 2013. Before Judges Messano, Sabatino and Hayden. On appeal from the Law Division, Hudson County, L-2282-11. [Sat below: Judge Santiago.] DDS No. 36-2-1730 [11 pp.]

Defendant Durling Realty, L.L.C., owns and operates a Quick Chek convenience store. On May 16, 2010, plaintiff and her friend went inside the store at approximately 10 p.m. The area outside the store was brightly lit. Plaintiff and her friend purchased items and left the store. According to plaintiff, she then slipped on a discarded telephone calling card, which was on the sidewalk near the store entrance. Plaintiff injured her knee, requiring medical treatment.

Plaintiff claims that the presence of the plastic card on the sidewalk created an unreasonably dangerous condition. In support of her negligence 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 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 debris 10 to 15 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, employees are required to sweep the area outside and make sure that it is clean. The area is also vacuumed every two or three days. On the night in question, a shift ended 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 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.

The motion judge granted defendant summary judgment and dismissed the complaint, rejecting plaintiff’s theories of liability. The judge concluded that plaintiff failed to present evidence that the phone card was present for an unreasonable amount of time, and 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.

Held: Where plaintiff was injured after she slipped on a telephone calling card that had been discarded on the sidewalk outside of defendant’s convenience store, defendant is not liable under the “mode of operation” theory of liability.

The appellate panel agrees with the trial court that 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 record lacks competent proof that defendant failed to exercise due care in the manner in which it maintained the sidewalk outside of its store. No witnesses or exhibits contradict the store manager’s testimony describing the Quick Chek’s routine maintenance and trash-removal procedures. Those procedures have not been shown to be unreasonable. Moreover, the conclusory statements of plaintiff’s expert criticizing those procedures are not grounded in identified objective standards, and must be disregarded as inadmissible net opinion.

The panel further agrees with the motion judge that this is not an appropriate case for the imposition of mode-of-operation liability. In certain instances, courts have eliminated a tort plaintiff’s requirement of proof of actual or constructive notice where, “as a matter of probability, a 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.” 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.

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. In Nisivoccia v. Glass Gardens Inc., the plaintiff was injured after slipping and falling on loose grapes approximately three feet from the checkout aisle of a supermarket. Because the grapes were packaged in open and air-vented bags that “invited spillage,” the court found that it was foreseeable that loose grapes would fall to the ground near the checkout area, creating a dangerous condition for an unsuspecting customer walking in that area.

Appellate opinions have extended the mode-of-operation doctrine to include self-service businesses other than cafeterias and supermarkets. The appellate panel noted that a “unifying factor” between the 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.”

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, here there occurred an interaction with a store employee after an item was 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 that the convenience store’s “method of doing business” created the hazard encountered by plaintiff on the sidewalk. The transaction between the purchaser of the phone card and the store was fully concluded at the time of purchase. What the purchaser chose to do with the card after leaving the store was not an integral feature of the store’s retail operation. Lastly, the panel finds that because the card contains stored value that can be applied to multiple calls, it is not debris that would invariably be tossed aside when the card purchaser leaves the store.

There would have been no principled basis to apply the special elements of a mode-of-operation jury instruction here. Instead, ordinary principles of premises liability, including the requirement of actual or constructive notice of a dangerous condition on the sidewalk, would apply.

For appellant — Zavodnick, Perlmutter & Boccia (Christopher S. Byrnes on the brief). For respondent — Suzanne D. Delvecchio.