SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4325-19

SHIRLEY A. BROADNAX,

Plaintiff-Appellant,

v.

AJS SUPERMARKETS, LLC,

1

Defendant-Respondent.

__________________________

Argued October 4, 2021 – Decided November 5, 2021

Before Judges Fasciale and Sumners.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-7899-18.

David M. Wasserman argued the cause for appellant 

(Andrew Park, PC, attorneys; David M. Wasserman, on 

the brief).

Charles B. Carey argued the cause for respondent 

(Carey & Grossi, attorneys; Charles B. Carey, on the 

brief).

PER CURIAM

1

Improperly pled as Shoprite of Hillside.

NOT FOR PUBLICATION WITHOUT THE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.
2

A-4325-19

Plaintiff Shirley Broadnax was injured after slipping and falling on clear 

liquid on the floor near the checkout area at a supermarket owned and operated 

by defendant AJS Supermarkets, LLC. Litigation ensued and following the end 

of discovery, the motion judge granted summary judgment to defendant on the 

basis that plaintiff failed to present any evidence that defendant had actual or 

constructive notice of the dangerous condition. The judge did not reverse his 

ruling on plaintiff's reconsideration motion, rejecting plaintiff's sole and belated 

argument that the mode-of-operation rule applied to alleviate plaintiff's burden 

to prove defendant had constructive notice of the dangerous condition. 

Before us, plaintiff argues summary judgment should not have been 

granted because there was a genuine issue of material fact as to whether 

defendant had "constructive notice of the spill when a video show[ed] its 

employee walking right by the spill." Plaintiff further contends the judge should 

have applied the "mode-of-operation rule to eliminate the notice requirement."

We conclude reversal is appropriate because the jury should be allowed to 

determine if defendant's employee had actual or constructive notice of the 

dangerous condition. 

Appellate review of a ruling on a motion for summary judgment is de 

novo, applying the same standard governing the trial court. Davis v. Brickman 
3

A-4325-19

Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). Thus, we 

consider, as the motion judge did, "whether the competent evidential materials 

presented, when viewed in the light most favorable to the non-moving party, are 

sufficient to permit a rational factfinder to resolve the alleged disputed issue in 

favor of the non-moving party." Id. at 406 (quoting Brill v. Guardian Life Ins. 

Co. of Am., 142 N.J. 520, 540 (1995)). If the judge finds no genuine issue of 

material fact, the judge must then "decide whether the [motion judge] correctly 

interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. 

Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Massachi v. AHL 

Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We accord no 

deference to the motion judge's legal conclusions. Nicholas v. Mynster, 213 

N.J. 463, 478 (2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)). 

To prove defendant's liability, plaintiff needed to establish: "(1) a duty of 

care, (2) a breach of that duty, (3) actual and proximate causation, and (4) 

damages." Davis, 219 N.J. at 406 (quoting Jersey Cent. Power & Light Co. v. 

Melcar Util. Co., 212 N.J. 576, 594 (2013)). Because plaintiff was a business 

invitee, defendant owed her "a duty of reasonable care to guard against any 

dangerous conditions on [its] property that [it] either knows about or should 

have discovered." Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 44 (2012) (quoting 
4

A-4325-19

Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434 (1993)). "[A]n invitee 

seeking to hold a business proprietor liable in negligence '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.'" Prioleau v. 

Ky. Fried Chicken, Inc., 223 N.J. 245, 257 (2015) (quoting Nisivoccia v. Glass 

Gardens, Inc., 175 N.J. 559, 563 (2003)).

The absence of actual or constructive notice of the dangerous condition is 

generally "fatal to [a] plaintiff's claim[] of premises liability." Arroyo v. Durling 

Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013). It is well established 

that:

[a] defendant has constructive notice when the 

condition existed 'for such a length of time as 

reasonably to have resulted in knowledge and 

correction had the defendant been reasonably diligent.'

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 (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.
5

A-4325-19

[Troupe v. Burlington Coat Factory Warehouse Corp., 

443 N.J. Super. 596, 602 (App. Div. 2016).]

"The mere '[e]xistence of an alleged dangerous condition is not constructive 

notice of it.'" Arroyo, 433 N.J. Super. at 243 (alteration in original) (quoting 

Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990)).

Based upon our de novo review and applying the same standard governing 

the trial court, Davis, 219 N.J. at 405 (citations omitted), we conclude summary 

judgment should not have been granted to defendant. Viewing the facts in the 

light most favorable to plaintiff, the non-moving party, a rational factfinder 

could find that defendant had constructive notice of the dangerous condition that 

caused her fall. See id. at 406 (quoting Brill, 142 N.J. at 540).

After paying for her groceries, plaintiff was exiting defendant's 

supermarket walking through the checkout area when she suddenly slipped and

fell to the ground. After a fellow customer helped her get up, plaintiff saw that 

she slipped on clear liquid detergent. She then went to an emergency room 

where she was treated for various back and lower-body injuries. 
6

A-4325-19

After filing a negligence action against defendant, discovery revealed 

video camera surveillance footage2showing that about a minute before plaintiff 

slipped and fell, a bottle of liquid fell from another exiting customer's shopping 

cart, spilling clear liquid on the floor. The customer left the store, seemingly

unaware of the mishap. Within a minute between the spill occurring and 

plaintiff walking through it and falling, two other customers, apparently not 

noticing the substance, exited near the spill. A store employee also walked near 

the spill but either choose to ignore it or did not notice it before leaving the area. 

Seconds later, plaintiff slipped on the liquid and fell. 

The store manager was shown the video during his deposition. He 

explained that all store employees are responsible for "watching out for tripping 

hazards." He stated it was company policy that an employee who sees a liquid 

on the floor is instructed to "[s]ecure the area" by "basically stand[ing] there, 

mak[ing] sure that the area is safe, this way nobody trips or falls, and in the 

meantime summon assistance to clean[]up whatever foreign matter may be on 

the floor." He said store employees did not have notice of the spill that caused 

2

 The video is not included in the trial record. Our reference to the video is 

based on both the motion judge's comments regarding the video in his oral

decision and the defendant's store manager's deposition testimony describing 

what he observed as he contemporaneously watched portions of the video. 
7

A-4325-19

plaintiff's injury because the video's timeframe of "a minute or two or less" 

between the liquid spilling and plaintiff's fall made it "impossible for [the store] 

to react." He thus concluded defendant's safety protocols were not violated. 

We conclude that viewing these facts in the light most favorable to 

plaintiff, there is a question of material fact for a jury to decide whether

defendant had constructive notice of the liquid the floor when a store employee 

walked by it moments before plaintiff slipped and fell. This is not a situation 

where plaintiff sought to establish defendant had constructive notice of a 

dangerous condition because of its presence for a reasonable time but failed to 

remove it. Plaintiff's reliance on the video footage is akin to eyewitness 

testimony. The video depicted a bottle falling out of a customer's cart, spilling 

clear liquid on the floor, and defendant's employee walking by the spill just 

before plaintiff's accident. We cannot say whether the employee should have

noticed the spill and then followed the store policy of blocking off the area of 

the spill before it could be cleaned. Given the lack of deposition testimony or 

certification from the employee, there is no evidence what the employee saw 

prior to plaintiff's fall. We disagree with the motion judge that based upon the 

video footage, "it would be unreasonable to conclude the employee should have 

seen the spilled material in the circumstances." The jury, not the judge, should 
8

A-4325-19

resolve whether the employee should have seen the liquid, and if so, followed

the store policy to secure the area. Hence, the summary judgment order 

dismissing plaintiff's complaint is vacated so plaintiff's claims can be decided 

by a jury at trial. 

As for plaintiff's contention that the motion judge erred on reconsideration 

in rejecting her claim that the mode-of-operation rule applies, we disagree.3 The 

rule provides an inference of negligence against a defendant business 

establishment by relieving a plaintiff of proving the defendant had actual or 

constructive notice of a particular dangerous condition if the defendant's mode 

of operation created the condition that caused the accident. Prioleau, 223 N.J. 

at 248. Our Supreme Court made clear in Prioleau that the mode-of-operation 

rule does not apply where there is no evidence the "plaintiff's accident . . . bears 

the slightest relationship to any self-service component of defendants' business." 

Id. at 264. Thus, the rule was not applicable where the plaintiff alleged that her 

slip and fall at a fast-food restaurant was caused by either grease tracked on the 

floor by employees working in the kitchen or patrons tracking water into 

building during rainy weather. Id. at 264-65. 

3

 Normally, an argument not raised on a motion cannot be considered on a 

reconsideration motion. However, because the motion judge considered the 

argument, we do as well. 
9

A-4325-19

Our courts have "never . . . expanded [the mode-of-operation rule] beyond 

the self-service setting, in which customers independently handle merchandise 

without the assistance of employees or may come into direct contact with 

product displays, shelving, packaging, and other aspects of the facility that may 

present a risk." Id. at 262. "Thus, the mode-of-operation rule is not a general 

rule of premises liability, but a special application of foreseeability principles in 

recognition of the extraordinary risks that arise when a defendant chooses a 

customer self-service business model." Ibid. 

Plaintiff's contention that the motion judge erred in refusing to apply the 

mode-of-operation rule is without merit. The judge ruled 

there is no evidence in the record as to how the material 

was handled and packaged in the check-out lane, by 

whom it was handled and whether that activity caused 

the sealed bottle to fall onto the floor. In the absence 

of record evidence supporting the possible application 

of the doctrine to the circumstances here, it is not 

appropriate on this record to adopt an expansion of the 

doctrine . . . were this [c]ourt empowered to do so. 

We agree with the judge that the mode-of-operation rule is not applicable 

here because there was no evidence that the accident resulted from the type of 

self-service activity contemplated under the rule. Based upon the motion record

that was limited to the discovery that had closed, plaintiff's slip-and-fall accident 

was caused by a spill from a bottle of liquid detergent that fell from an 
10 A-4325-19

customer's cart. There is no indication the spill was related to self-service

activity by the customer, i.e., the customer filled the bottle with liquid detergent 

but failed to secure its contents. Based on Prioleau, extending the mode-ofoperation rule as plaintiff seeks would render it superfluous. 

To the extent we have not addressed any of plaintiff's arguments, we 

conclude they are without sufficient merit to warrant discussion in this opinion. 

R. 2:11-3(e)(1)(E). 

Affirmed.