SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- 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

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- 17. Charles Z. Schalk argued the cause for appellants (Sav o, Schalk, Gillespie, O ' Grodnick & Fisher, PA, attorneys; Charl es Z. Schalk, of counsel and on the briefs).
James N icholas 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 cas e and its u se in other cases is limited. R. 1:36

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- 18T2 attorneys; James N icholas Barletti, of counsel and on the br ief).
PER CURIAM Plaintiffs Theresa and Joseph Yakup appeal from a February 2 1 , 2019 order granting summary judgment in favor of defendant Village Supermarkets Inc., t/a Shop R ite of Absecon #633, and a March 29, 2019 order denying
reconsideratio n. We affi rm. We derive the facts from the summary judgment record. 1 D efendant owns and operates a ShopRite supermarket in Absecon. The re 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 c arts are lined up at the
entrance to the store or in a co rral in the parking lot. On the day of these events, plaintiffs arr ived at the ShopRite and parked their car. Joseph stated that when he got out of his car there was a shop p ing car t
next to i t. 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 th e other car riage s . . . . " 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.3

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and [he] turned around and

. . . [saw ] her fa ll,

. . . lung [ ing ] for the carriag e . . . . " 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 fo r that carriage and it starte d down the ra m p and it just took off and she just missed it an d she fell

. "
Theresa testified that as s he started to go into the store, she saw a cart rolling o ut 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. D efendant ' s surveillance camera captured plaintiffs ' movements after they exited their car and headed into the store. 2
P laintiffs instituted suit against defendant , stating Theresa had " tripped

over uneven pavement in the parking lot " and fa llen whil e chasing a shopping
cart. Plaintiffs alleged defendant was negligent in " not adequately maintaining the common public areas of its property

. . . . "
After the completi o n of discovery, defendant moved fo r summary judgment, arguing pla intiffs 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 con tradicts th e tr ial judge's factual findings. See S tate v. S.S. , 229 N.J. 360, 374

- 81 (2017) (clarifying the limited scope of appellate review of factual findings based on video evidence).4

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condition of which d efendant had actual or constructive notice

. Therefore, plaintiffs could not demonstrate defendant breached its duty to them and could not support t heir claim of negligence. In o pposition, 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 pa vement

– that allowed runaway c arts to go into
traffic. Plaintiff s contended it was for a jury to determine whether defendant created a dangerous condition, and whether Theresa ' s accident was reasonably foreseeable. On February 2 1 , 2019, after hearing argument and reviewing the surveil lance video of the incident, the mot ion 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. Plainti ffs had not proffered a n y evidence d emonstrating 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, t he judge found p laintiffs needed an expert to support their claim that " the pitch o f the ramp or some improp er construction or design " created a dangerous condition and whether such a condition was reasonably foreseeable by defendant. The judge reasoned:5

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- 18T2 The simple facts here, as demonstrated in the video of the accident, are that [Jose ph] pushed the subject sh opping 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 perfor med differe ntly 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 d oes not automa tically invoke the rule

. See Nis ivoccia v. Glass Gardens, Inc. , 175 N.J. 559, 563 (2003)

. Furthermore, shopping cart s were not themselves dangerous instrumentalities.
Plaintiffs ' mo tion for reconsideration was denied in a written decision o n March 29, 2 019. The judge cl arified 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 no t identif ied a specific defect, such as a hole or crack, in the pavement

. Nor had plaintiffs proffered e xpert testi mony regarding any dangerous condition

. Without an expert, jurors would have to speculate whether the pavement was uneven at all , and wheth er th e alleged uneven surface constituted a dangerous condition.6

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The judge noted the video did not support plaint i ffs ' c o ntenti o ns. To the contrary, he stated that " [ t]he video confirms that

. . . [Theresa] did not trip and
fall on a ' defe ct ' in the pave ment

– which is a fact that she apparently has acknowledged in her Answers to Interrogatories. " Lastly, t he judge determined the accident was not foreseeable. He stated
that the accident could have been avoided if Joseph had exercised care in properly se curing 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 pr ima facie case of negligence bec ause defend ant 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 tria l court. G reen 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 evi dentiary st andard , are7

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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).
Summa ry judgment must be granted " if the pleading s, depositi ons, 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 entitle d 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) (citatio ns 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 discret ion. " Cumm ings 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)).
A pplying these standards, we conclude the motion judge properly granted summary judgment and denie d reconside ration. Although the judge was8

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mistaken in his first decision that defendant did not owe plaintiffs a duty , he

c orrected that determination in the decision denying reconsideration. It cannot be disputed that defendant owed a duty to plaintif fs as its

c ustomers. However, because plaintiffs have not establish ed 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 elimi nate dangerous conditions, to maintain the premises in safe condition, and to avoid creating cond itions 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 (A pp. Div. 1952)

. An injured plaintiff must ordinarily prove " that the
defendant had actu al 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 construc tive notice where , under the circumstances , there

was a reasonable probability that " a d angerous condition [was] likely to occur as the result of the nature of the business, the property ' s condition, or a9

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demonstrable pattern of conduct or incid ents. " Ibi d. In t hat 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 avo id the pote ntial hazard. " Id.
at 563

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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 a nd could foreseeably fall or spill on t he floor , the mode of operation rule was applicable. Id. at 5 61 (loose grapes displayed in
open - top, vented plastic bags); s ee also Simpson , 19 N.J. Super. at 342 (loose vegetables displayed in counter bins). The mere provision of shopping cart s for use b y customers via a self

service cart corral does not raise a su bstantial risk inherent in defendant ' s mode of doing business. Therefore, the mode of operation rule is not available here.
Plaintiff s further assert the motion judge improperly dist inguished t he 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 cart s as she ex ited the store and was propelled through a plate glass window. Ibid. In reinstating the jury verdict in favor of the plaintiffs, t he C ourt10

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held there was sufficient expert testimony from which a jury could find the design and construction of t he 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 distinguish ed Meade from the
cir c umstances here. Plaintiffs have not identi fied any de fect 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 n o 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, t he plaintiff was injured when he was struck in the back by a shopping cart outsid e the doors of a supermarket. Id. at 24 6

. The plaintiff argued that the defendant should have anticipated the carelessness of customers using the carts and the possibility o f injury. Id. at 247. We found, to the contrary, that shopping carts
are not da ngerous ins trumentalities, but rather, are tools of convenience uniquely suited for the purpose for which they have been furnished. Id. at 247

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We said, " [e] very human activity involves some ris k of harm, but the reasonable probability of having other than a min or 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

. W e held it w as improper for the jury to speculate " witho ut any expert or other testimony " that the area around th e store ' s d oors was improperly designed or constructed. Ibid. As plain t iffs have not established the existence of a dangerous con di tion
or that def endant had actual or constructi v e notice of it, the y cannot demonstrate
defe n da n t breached its duty to them

. Affirmed.