SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0026-18T4

LINDA ADLER,

Plaintiff-Appellant,

v.

WAKEFERN FOOD CORPORATION

and SHOPRITE OF WAYNE, 

Defendants-Respondents,

and

REGENCY CENTERS and FW 

NJ-PLAZA SQUARE,

Defendants.

________________________________

Argued June 18, 2019 – Decided July 10, 2019

Before Judges Koblitz and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-0882-17.

Alan K. Albert argued the cause for appellant (Brandon 

J. Broderick, LLC, attorneys; Alan K. Albert, on the 

brief).

NOT FOR PUBLICATION WITHOUT THE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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A-0026-18T4

Charles Barber Carey argued the cause for respondents

(Carey & Grossi, attorneys; Charles Barber Carey, on 

the brief).

PER CURIAM

Plaintiff Linda Adler appeals from the July 20, 2018 order of the Law 

Division granting summary judgment in favor of defendant Inserra 

Supermarkets, Inc. (Inserra) in this premises liability action, and the August 17, 

2018 order denying her motion for reconsideration. We affirm.

I.

Adler alleges she was injured when she slipped and fell in the frozen food 

aisle of a Shop Rite supermarket operated by Inserra. During discovery, Adler 

admitted that she did not know what caused her to slip and fall and that she did 

not see any object on the floor either before or after the incident. According to 

Adler, an employee of Inserra was stocking shelves nearby when she fell. He 

asked if she was injured. Adler left the store shortly after the incident.

Approximately twenty minutes later, Adler returned to the store to 

complete an incident report. She testified that while she was completing the 

report, the employee brought a piece of an orange to the manager and said it was 

the object that caused Adler to slip and fall. Adler conceded that she did not 

know where the orange piece came from or how long it had been on the floor 
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before she slipped and fell. Inserra does not sell orange pieces at the store, only 

whole oranges. Whole oranges are not sold in the frozen food aisle.

At the conclusion of discovery, and after the court set a trial date, Inserra 

moved for summary judgment.1 Inserra acknowledged that Adler slipped and 

fell in its store and that it had a duty to correct hazardous conditions of which it 

had notice. It argued, however, that Adler did not create a genuine issue of 

material fact with respect to whether Inserra had actual or constructive notice 

that the piece of orange was on the floor prior to Adler's fall.

The trial court granted Inserra's motion. The court concluded that, 

accepting as true Adler's allegation that the piece of orange caused her to slip 

and fall, she produced no proof that Inserra had actual or constructive notice of 

the hazardous condition. Thus, the court determined because there is no genuine 

issue of fact with respect to notice, as a matter of law Adler could not establish 

Inserra was liable for her injuries. A July 20, 2018 order memorializes the trial 

court's decision.

 

1

 Adler initially named as defendants Wakefern Food Corp. (Wakefern), 

ShopRite of Wayne, Regency Centers (Regency), and FW-NJ Plaza Square 

(Plaza Square). In its answer, Inserra alleged that it was improperly pleaded as 

Wakefern. Adler voluntarily dismissed her claims against Wakefern, Regency, 

and Plaza Square and the matter proceeded against Inserra. The supermarket 

operated by Inserra is known as ShopRite of Wayne.
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Adler subsequently moved for reconsideration. She argued for the first 

time that the trial court erred when it heard oral argument on Inserra's motion 

twenty-seven days before the scheduled trial date, contrary to R. 4:46-1. The

Rule provides that the return date of a summary judgment motion should be no 

later than thirty days before a scheduled trial date, unless the court orders 

otherwise for good cause.

On August 17, 2018, the trial court entered an order denying Adler's 

motion for reconsideration. The order, which was not accompanied by a written 

or oral opinion, states that "there is no[] showing that this court made a mistake 

of law or fact in granting defendant's motion for summary judgment."

This appeal followed. Adler reiterates her argument with respect to Rule

4:46-1 and argues she produced sufficient evidence to create a genuine issue of 

material fact with respect to whether Inserra had actual or constructive notice of 

the hazardous condition that caused Adler to slip and fall, precluding entry of 

summary judgment against her.

II.

We review the trial court's decision granting summary judgment de novo, 

using "the same standard that governs trial courts in reviewing summary 

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 
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162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant 

summary judgment when "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." "Thus, the movant must 

show that there does not exist a 'genuine issue' as to a material fact and not 

simply one 'of an insubstantial nature'; a non-movant will be unsuccessful 

'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995)).

Assertions that are unsupported by evidence "[are] insufficient to create a 

genuine issue of material fact." Miller v. Bank of Am. Home Loan Servicing,

L.P., 439 N.J. Super. 540, 551 (App. Div. 2015) (alteration in original) (quoting 

Heyert v. Taddese 431 N.J. Super 388, 414 (App. Div. 2013)). "Competent 

opposition requires 'competent evidential material' beyond mere 'speculation' 

and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 

415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun 

Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005)). We review the record 

"based on our consideration of the evidence in the light most favorable to the 

parties opposing summary judgment." Brill, 142 N.J. at 523.
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In order to establish a prima facie case of negligence a plaintiff must 

establish: (1) a duty of care; (2) breach of that duty; (3) proximate cause; and 

(4) damages. Filipowicz v. Diletto, 350 N.J. Super. 552, 558 (App. Div. 2002). 

"Whether a person owes a duty of reasonable care toward another turns on 

whether the imposition of such a duty satisfies an abiding sense of basic fairness 

under all of the circumstances in light of considerations of public policy." 

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). Courts should 

consider "the relationship of the parties, the nature of the attendant risk, the 

opportunity and ability to exercise care, and the public interest in the proposed 

solution." Ibid.

"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." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003). "The 

duty of due care to a business invitee includes an affirmative duty to inspect the 

premises and '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.'" Troupe v. Burlington Coat 

Factory Warehouse Corp., 443 N.J. Super. 596, 601 (App. Div. 2016) (quoting 

Nisivoccia, 175 N.J. at 563).
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"Owners of premises are generally not liable for injuries caused by defects 

of which they had no actual or constructive notice and no reasonable opportunity 

to discover." Id. at 601-02. "For that reason, '[o]rdinarily an injured plaintiff 

. . . must prove, as an element of the cause of action, that the defendant had 

actual or constructive knowledge of the dangerous condition that caused the 

accident.'" Id. at 602 (alternation in original).

Constructive knowledge is established with proof that the condition 

existed "for such a length of time as reasonably to have resulted in knowledge 

and correction had the defendant been reasonably diligent." Ibid. (quoting 

Parmenter v. Jarvis Drug Stores, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957)).

Constructive notice can be inferred in various ways. 

The characteristics of the dangerous condition giving 

rise to the slip and fall, see, Tua v. Modern Homes, Inc., 

64 N.J. Super. 211, 220 (App. Div. 1960) (finding 

constructive notice where wax on the floor had 

hardened around the edges), or eyewitness testimony, 

see, Grzanka v. Pfeifer, 301 N.J. Super. 563, 574 (App. 

Div. 1997) (finding constructive notice where 

eyewitness noted the light had been out for a while) 

may support an inference of constructive notice about 

the dangerous condition.

[Ibid.]

Having carefully reviewed Adler's arguments in light of the record and 

applicable legal principles, we affirm the July 20, 2018 order. We agree with 
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the trial court's conclusion that Adler produced no evidence creating a genuine 

issue of material fact with respect to whether Inserra had actual or constructive 

notice of the condition that caused her to slip and fall.

Adler did not see what caused her to fall. In addition, even if we accept 

as true Adler's hearsay testimony that an Inserra employee identified the piece 

of orange as the cause of her fall, Adler produced no evidence with respect to 

the source of the orange piece, the length of time that it was on the floor, or 

whether the employee noticed the hazardous condition before Adler fell.

We reject, as did the trial court, Adler's argument that because the 

employee was stocking shelves near where she slipped and fell, Inserra was on 

notice of the hazardous condition. Inserra conceded that each of its employees 

has a duty to maintain a safe environment for customers and a responsibility to 

be on the lookout for spills that create hazards. There is, however, no evidence 

in the motion record that the employee near where Adler fell was expected to 

monitor the condition of the floor while performing his assigned task of stocking 

shelves or was remiss in not noticing and remediating the hazardous condition 

before Adler's fall.

In addition, the fact that other customers periodically reported falling at 

the supermarket during the seven years preceding Adler's fall does not create a 
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genuine issue of material fact. Inserra's notice of prior hazards is not evidence 

that Inserra had actual or constructive notice of the piece of orange on which 

Adler slipped and an opportunity to remove that hazardous condition.

We also affirm the August 17, 2018 order denying reconsideration. "A 

motion for reconsideration . . . is a matter left to the trial court's sound 

discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane 

Morris, LLP, 202 N.J. 79, 87 (2010)). A party may move for reconsideration of 

a court's decision pursuant to Rule 4:49-2 on the grounds that (1) the court based

its decision on "a palpably incorrect or irrational basis," (2) the court either 

failed to consider or "appreciate the significance of probative, competent 

evidence[,]" or (3) the moving party is presenting "new or additional information 

. . . which it could not have provided on the first application[.]" Cummings v. 

Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 

242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).

The trial court correctly concluded Adler did not establish that the July 

20, 2018 order was decided on a palpably incorrect or irrational basis. Nor did

Adler present new or additional evidence not available to her prior to entry of 

the July 20, 2018 order. While the trial court's findings of fact and conclusions 

of law on the motion for reconsideration were minimal, we are satisfied that we 
10 A-0026-18T4

had a sufficient record on which to effectively review the trial court's decision. 

R. 1:7-4(a).

Adler's argument with respect to the return date of Inserra's motion lacks 

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). 

We note, however, that Adler did not object to the timing of the motion, either 

before the return date or during oral argument on the motion, and concedes that 

she had sufficient time to oppose the motion and prepare for oral argument. In 

the absence of an objection by Adler, we see no abuse of discretion on the part 

of the trial court with respect to the scheduling of the motion.

Affirmed.