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, 

NOT FOR PUBLICATION WITHOUT THE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.
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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.
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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).
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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:
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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.
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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 
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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 
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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 
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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 selfservice 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 SupermarketOrange, 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 
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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. ShopRite 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 outside 

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. 
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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.