District of New Jersey Denies Summary Judgment Despite the Liquid Spilling Four Minutes Before the Fall

On March 10, 2016, the District of New Jersey addressed the mode of operation doctrine and issues related to constructive notice.  In Romeo v. Harrah’s Atlantic City Propco, LLC, 2016 U.S. Dist. LEXIS 31456 (D.N.J. March 10, 2016), the plaintiff fell on a liquid in a common walkway at a casino.  A surveillance video showed a patron spilling his beverage on the floor and then four minutes later, the plaintiff slipped.  The casino employees also inspect the location where the plaintiff fell every thirty to forty minutes.  The defendant moved for summary judgment, arguing that it did not have constructive notice of the dangerous condition.

The plaintiff argued that the mode of operation rule should be applied and, in the alternative, that constructive notice was an issue of fact for the jury.  Applying the recent New Jersey Supreme Court case Prileau v. Kentucky Fried Chicken, 223 N.J. 245 (2015), the District Court found that the mode of operation rule did not apply because there was no causal nexus between the defendant’s “self-service operation” and the spill.  Summary judgment was still denied, however, because there was a jury question regarding whether the defendant had constructive notice of the spill.  The District Court noted that a business owner breaches its duty to maintain its premises in a safe condition “if the condition existed for such a length of time that the owner should have known of the condition and fails to remediate the problem.”  Since the video showed a casino supervisor walking “in the general area of the existing spill,” the District Court held that “[d]rawing all favorable inferences in Plaintiff’s favor, a genuine issue of material fact exists as to whether  Defendant had constructive notice of the spill, despite the fact that it existed for only four minutes prior to [Plaintiff’s] fall.”

This District of New Jersey decision demonstrates the high hurdle for a defendant seeking dismissal based on a lack of constructive notice.  Although it was undisputed that the defendant did not create the condition and that the condition existed for only four minutes, because one of the defendant’s employees was “in the general area” of the spill, summary judgment was not granted.

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Written by Danny C. Lallis

Danny is a Partner with Pisciotti Malsch, and his practice includes appeals, product liability, and commercial litigation.