SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0198-20

ALICJA JACHNA,

Plaintiff-Appellant,

v.

MACY'S INC., d/b/a

BLOOMINGDALE'S, and

SCHINDLER ELEVATOR 

CORPORATION,

Defendants-Respondents.

__________________________

Submitted May 25, 2021 — Decided June 25, 2021

Before Judges Haas and Mawla.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-2511-19.

Amy L. Peterson, attorney for appellant.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, 

attorneys for respondents (Edward DePascale, of 

counsel; Diana M. Hendry, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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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Plaintiff Alicja Jachna appeals from a September 1, 2020 order granting 

summary judgment to defendants, Bloomingdale's, Inc. and Schindler Elevator 

Corporation1 dismissing plaintiff's complaint. We affirm.

In April 2019, plaintiff filed a complaint in the Law Division alleging she 

slipped and fell down an escalator in Bloomingdale's at the Short Hills Mall on 

November 8, 2017. Plaintiff amended the complaint one month later and alleged 

defendants' "negligence, carelessness and recklessness" in failing to maintain a 

"dangerous, hazardous, trap-like condition" on their property, specifically a 

"defective escalator," caused her to fall and suffer her various injuries. 

The parties exchanged discovery, including answers to interrogatories,

and conducted depositions of plaintiff and the Schindler Elevator mechanic who 

last serviced the escalator plaintiff was riding when she fell.2 Pursuant to the 

exchange of written discovery, defendants produced a Bloomingdale's internal 

incident report prepared by a Bloomingdale's employee who arrived after the 

fall and noticed plaintiff was bleeding and had cuts on her head and lower leg. 

1 Bloomingdale's was defended in this matter under the insurance agreement of 

Schindler.

2 Although plaintiff has included the parties' answers to interrogatories and the 

mechanic's deposition transcript in her appellate appendix, she did not provide 

them to the motion judge. We do not consider evidence that was not provided 

to the trial court in the first instance. R. 2:5-4(a).
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The employee noted plaintiff "seemed very startled" and "due to her age[

3

], 

accent, and the level of injury," it "was challenging to retrieve information . . . ." 

Another Bloomingdale's employee told the reporting employee "the customer 

was on her phone during the time of the accident." 

At her deposition, plaintiff provided the following testimony. Prior to the 

accident, she shopped at the Short Hills Mall approximately three times per 

week. On the date of the incident, she arrived at Bloomingdale's around 1:00 

p.m., browsed for approximately three hours, and bought a few things. She wore 

shoes with "[a] very small" heel. That day, she used the escalators in 

Bloomingdale's "twice[ or] three times" and did not have "any problems using 

any of [the] escalators before the one on which [the] accident happened[.]" Her 

accident occurred during her fourth trip on her way down the escalator at 

approximately 4:30 p.m.

Plaintiff testified there were a "few" other shoppers on the escalator at the 

time and the entrance platform was well lit. When she got onto the escalator, 

she carried "[t]wo very light shopping bags and [her] pocketbook" in her left 

hand, and her right hand was free. She denied using her phone to either speak

or text before boarding the escalator and stated the moment she stepped onto the 

3 Plaintiff was eighty years old at the time of the accident.
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first escalator step, she slipped on "something slippery . . . on the step[,] . . . 

tumbled [and] hit every part of [her] body" including her head and her legs on 

the "sharp" edges. Plaintiff was taken to the hospital and treated for her injuries.

Plaintiff's medical records revealed she had fallen six months prior to the 

accident. Defendants' counsel asked her about the fall, but she could not 

remember what happened. Plaintiff also admitted she was previously diagnosed 

with macular degeneration, but stated she can "still drive [and] . . . read [with 

the help of reading glasses]." Plaintiff testified she does not have prescription 

glasses and does not need glasses to walk or drive.

In July 2020, two months after the discovery end date, defendants filed a 

motion for summary judgment. Plaintiff opposed the summary judgment motion 

and filed a cross-motion to extend discovery. 

Defendants' summary judgment motion included a statement of material 

facts, which among other assertions stated plaintiff provided neither a 

curriculum vitae of any proposed experts nor "any written narrative reports by 

any identified expert witnesses." Plaintiff's opposition to summary judgment 

argued "there still remain[ed] questions of material fact which the jury should 

determine." However, plaintiff's counterstatement of material facts admitted

every fact in defendants' statement of material facts. Plaintiff's opposition
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included a certification from her attorney, which attached a letter dated August 

13, 2020, addressed to defendants' counsel amending her interrogatories to 

include a six-page expert report dated August 12, 2020, and the expert's 

curriculum vitae.

The expert report was prepared by a senior consultant for an elevator and 

escalator consulting firm. The expert explained he examined Schindler's records 

"of emergency repairs," the Bloomingdale's incident report, the depositions of 

plaintiff and the Schindler mechanic, the emergency medical squad report, a 

video of the accident, and interrogatory answers. The report claimed "the video 

shows clearly that [plaintiff] was holding the right handrail" and "not . . . holding 

a cell phone" and as plaintiff stepped onto the escalator, "she was forcibly 

thrown to the metal surface of the escalator steps and tumbled down the 

escalator." The expert's report also stated:

Escalator handrails are driven by friction and this 

friction is created by running the interior of the handrail 

against a rubber or synthetic rubber type material 

bonded to a device known as a handrail drive sheave. 

This model of escalator, appears from the video to be 

an older Otis unit, this will be confirmed when an onsite examination can be conducted.

The maintenance of proper friction is essential in 

assuring that the handrails run at approximately the 

same speed as the moving steps. When proper friction 

is lost due to improper maintenance or lack thereof the 
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handrail will stall momentarily while the steps will 

continue to move. This escalator has a rated speed of 

[ninety] feet per minute meaning that the steps move at 

a speed of one and one-half feet per second. When a 

passenger, using an escalator in a proper manner is 

holding the handrail and a stall occurs the passenger 

will fall since the step will continue to move forward.

A fall can also occur when excess oil from the 

step chains is deposited onto the steps. This is referred 

to in the trade a "sling off["] and the oil or other 

lubricant is deposited on the steps creating a slipping 

hazard. Again, this is prevented by diligent preventive 

maintenance.

A fall can also be caused when the side of a 

passenger[']s shoe becomes entrapped between the 

moving steps and the stationary side skirt panel or 

between the step and the channel into which the 

defector brush is mounted.

Noting he lacked Schindler's maintenance records and "records from 

Bloomingdale's ownership/management," the expert nonetheless opined as 

follows: 

It is my opinion, to a reasonable degree of 

certainty within my field of expertise, that this accident 

in all probability occurred due to the escalator handrail 

stalling, the presence of a slippery material on the 

steps[,] or the entrapment of the [p]laintiff's shoe 

between the step and side panel or deflector brush 

channel.[] 

The various components of the handrail drive 

system are all subject to routine maintenance and 

failure of the handrail to move at approximately the 
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same speed as the escalator steps is a clear indication 

of negligent preventive maintenance and a violation of 

the ANSI/ASME A17.1 Code for Elevators and 

Escalators. 

The presence of a slippery substance caused by 

sling off is preventable by diligent maintenance and no 

use of excess lubricant. 

The entrapment of a shoe at either the [s]pace 

between th[e] step and side panel or the deflector brush 

channel is, again a function of proper maintenance and 

adjustment. 

I am also of the opinion, to a reasonable degree 

of certainty within my field of expertise that Schindler 

failed to document its maintenance and as such violated 

its own record keeping standards which require 

documentation of all maintenance and repairs in a 

machine room logbook. 

It is my further opinion, to a reasonable degree of 

certainty within my field of expertise that 

Bloomingdale's failed to exercise reasonable care in 

assuring that the escalator was being properly 

maintained and by failing to document any inspections 

by their personnel to verify that the escalator was 

running properly. In connection with previous 

escalator cases I have reviewed, the procedures utilized 

by mall store operators including Sears and J.C. 

Penney's and the prevailing industry standard is visual 

inspection of each escalator every two to four hours to 

determine if they are operating properly. When a defect 

is found the standard procedure is to notify the escalator 

maintenance contractor and if the defect presents a 

hazard to passengers to remove the escalator from 

service until proper repairs have been accomplished. I 

have not reviewed any testimony or document to verify 
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if Bloomingdale's utilized any procedures to assure 

passenger safety nor any reports or logs documenting 

routine visual inspection of the escalator in question. 

It is my further opinion, to a reasonable degree of 

certainty within my field of expertise that the [p]laintiff 

was using the escalator in a proper manner and did not 

cause or contribute in any manner to the accident. 

It is my further opinion, to a reasonable degree of 

certainty within my field of expertise that this type of 

accident does not occur on a properly maintained 

escalator absent negligence in it[]s repair and 

maintenance. 

It is my further opinion, to a reasonable degree of 

certainty within my field of expertise that the 

[d]efendant[]s were in exclusive control of the escalator 

at the time of the accident.

The initial discovery end date was April 5, 2020. However, on March 30, 

2020, plaintiff, with defendants' consent, requested an extension of discovery, 

which the court granted to June 4, 2020. Plaintiff's cross-motion in response to 

defendants' summary judgment motion sought another extension to November 

13, 2020, "due to the [COVID]-19 pandemic." Plaintiff's counsel certified that

"[a]s a result of the COVID-19 pandemic our expert's report was not completed

. . . [and on May 22, 2020, she] sent an email to defense counsel requesting his 

consent to extend discovery because [the parties] had not exchanged expert 
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liability reports, which was never replied to by the . . . defendant[s]." Counsel 

further certified her expert had not "examine[d] the actual premises . . . ." 

Citing a "Supreme Court Order of March 17, 2020[,] 'relaxing' the 

[d]iscovery [e]nd [d]ates of [c]ivil matters . . . , [p]laintiff request[ed] an 

extension so as to permit the current [expert] report to be provided to the 

defendant[s]." She also referenced the Supreme Court's order "relax[ing] and 

supplement[ing Rule] 4:24-1[(c)] to allow counsel to request an extension 

without meeting the rule's requirements from March 16, 2020[,] through May 

10, 2020[,]" and "authoriz[ing c]ourts to suspend proceedings or extend 

discovery or other deadlines in the interest of justice" due to the pandemic 

emergency.

In their opposition, defendants noted the expert discovery was immaterial 

because in her deposition, "[p]laintiff did not mention her shoe being caught on 

anything on the escalator" or "any handrail malfunction" as the expert opined. 

Further, defense counsel certified "[a]ll of defendants' written discovery was 

served in August of 2019[,]" and "[p]laintiff did not demand more specific 

answers to interrogatories nor did she serve a notice to produce prior to the close 

of discovery." Defense counsel also noted plaintiff did not submit the expert 
10 A-0198-20

report, seek dates to inspect the site, or move to extend discovery prior to the 

June 4, 2020 discovery end date. 

The motion judge made the following findings:

[The] discovery end date in this case was June 4[], 

2020. Until now, there's been no explanation as to 

why[, . . . given] the fact it is past the discovery end 

date[,] that there is a necessity [pursuant to] the strict 

rules [to] reopen[] and extend[] discovery. 

Having said that, . . . there's nothing that the 

[c]ourt has been provided to suggest that any additional 

discovery will affect the fact that the there is no genuine 

issue of material fact presented. 

The judge further noted the parties had already attended mandatory arbitration 

pursuant to Rule 4:21A-1(a)(2) and plaintiff had not demonstrated the 

exceptional circumstances required under Rule 4:24-1(c) necessary to reopen 

and extend discovery. 

The judge made the following findings regarding the summary judgment 

motion: 

[P]ursuant to [Rule 4:46-2], the [c]ourt should grant 

summary judgment when "the pleadings, depositions, 

answers to interrogatories and admissions on file 

together with the affidavit, if any, show there is no 

genuine issue as to material facts challenged and that 

the moving party is entitled to judgment or order as a 

matter of law." [Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 528-29 (1995)]. 
11 A-0198-20

To sustain any ordinary negligence, the plaintiff 

must prove, one, a duty of care; two, a breach of that 

duty; three, actual and proximate causation; and four, 

damages. [Davis v. Brickman Landscaping, Ltd., 219 

N.J. 395, 406 (2014)]. 

. . . [B]ecause plaintiff was a business invitee, 

Bloomingdale's owed . . . the duty of reasonable care 

and [to] provide a reasonably safe place to do that 

which is within the scope of the invitation. [O'Shea v. 

K Mart Corp., 304 N.J. Super. 489, 492 (App. Div. 

1997)]. 

The scope of this duty puts an obligation to 

"discover and eliminate dangerous conditions, [to] 

maintain the premises in a safe condition, and [to] avoid 

creating conditions that would render the premises 

unsafe.[" Prioleau v. Kentucky Fried Chicken, Inc., 

434 N.J. Super. 558, 570 (App. Div. 2014), rev'd on 

other grounds, 223 N.J. 245 (2015)]. . . .

However, an accident does not establish a 

dangerous condition. Conjecture or guessing does not 

create a liability by the negligence and can be drawn 

only from and through its facts. Plaintiff must prove 

that a defendant had actual or constructive knowledge 

of a dangerous condition. Constructive knowledge 

exists if the dangerous condition existed for such a 

length of time that the property owner or merchant 

should have known of its presence. 

And, last, there are now exceptions to the notice 

requirement. . . . "[Notice, actual or constructive, of a 

dangerous condition is] . . . not required [when] the 

shopkeeper, through acts of its agents or patrons[,] 

creates a dangerous condition.[" Craggan v. Ikea 

United States, 332 N.J. Super. 53, 61 (App. Div. 2000)]. 

. . . [T]he Mode of Operations Doctrine applies when 
12 A-0198-20

"as a matter of probability, [a] dangerous condition[ is] 

likely to occur as the result of the nature of the business, 

the property's condition[,] or [a] demonstrable pattern 

of conduct or incidents." [Nisivoccia v. Glass Gardens, 

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

. . . "The burden imposed on plaintiff's invitee[ 

is] substantial[ly] altered [in settings in which the 

mode-of-operation rule applies]. The rule gives rise to 

a rebuttable inference that the defendant is negligent[,] 

and obviates the need for the plaintiff to prove actual or 

constructive notice." [Prioleau, 223 N.J. at 258]. The 

Mode of Operation rule is generally related to selfservice businesses. 

In addition, the [d]octrine of [r]es [ipsa] 

[l]oquitur reduces a plaintiff's burden of proof through 

reliance on circumstantial evidence. To prove the res 

ipsa case, the plaintiff must show []one, that the 

accident which produced a person's injury ordinarily 

does not happen unless someone was negligent. 

[Jimenez v. GNOC Corp., 286 N.J. Super. 533, 543-44 

(App. Div. 1996).] Two, the instrumentality o[r] agent 

who caused the accident was under the exclusive 

control of the defendant. [Ibid.] And, three, ["]the 

circumstances indicated that the untoward event was 

not caused or contributed to by any act or negligence 

o[n] the part of the injured person." [Ibid. (quoting 

Eaton v. Eaton, 119 N.J. 628, 638 (1990))]. 

Here, plaintiff fails to offer evidence that 

Bloomingdale's had actual or [constructive] notice of 

the alleged injury-causing substance. There's no 

evidence to suggest how long the substance existed, it's 

nature or [that an] employee observed the substance on 

the escalator. Plaintiff's broad suggestion that there's a 

genuine issue of material fact regarding the accident is 

[insufficient] to prevent summary judgment. Plaintiff 
13 A-0198-20

had not pointed to the specific facts in dispute related 

to her accident. 

Thus, the next level of analysis is whether there 

[is] . . . the rule exception. The [c]ourt rules there is 

not. There's nothing in the record to suggest that a 

Bloomingdale's employee caused the accident. The 

only evidence [is] that an accident at this time —

happened at Bloomingdale's course of business. 

Therefore, the Mode of Operations rule is irrelevant. 

As to the res ipsa argument, plaintiff is not 

entitled to bring her case to a jury under res ipsa any 

time there is an unexplained accident for which a 

defendant might "plausibly be responsible." Rather, it's 

the plaintiff's obligation to produce evidence that 

reduces the likelihood of other — so that the greater 

probability falls on the defendant[]s —.

Here, plaintiff has not offered any proof to 

undermine the suggestion [that] she fell on her own 

accord or another patron dropped the substance on the 

escalator. Instead, the plaintiff relies solely on the user 

itself to suggest it would not have occurred without 

negligence. That is a legally insufficient argument. 

[See Dombrowska v. Kresge-Newark, Inc., 75 N.J. 

Super. 271, 275 (App. Div. 1962)] . . . [(]ruling that res 

ipsa was inapplicable where a plaintiff offered 

uncorroborated evidence that she felt a jerk and fell 

down an escalator[)]. Finally, the [c]ourt agrees with 

defendants that there's no evidence that the escalator 

itself was deficient. . . . 

For all of the foregoing reasons as already cited 

as well as argument of counsel, defendant[s'] motion for 

summary judgment is granted. The plaintiff's crossmotion to extend discovery is denied.
14 A-0198-20

I.

"We generally defer to a trial court's disposition of discovery matters 

unless the court has abused its discretion or its determination is based on a 

mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. 

Super. 68, 80 (App. Div. 2005) (citations omitted). 

We review of a ruling on summary judgment de novo, applying the same 

legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017) 

(citations omitted). We consider "whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that 

one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell 

Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, 142 N.J. at 536). 

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." 

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 

N.J. 189, 199 (2016) (quoting R. 4:46-2(c)). "An issue of fact is genuine only 

if, considering the burden of persuasion at trial, the evidence submitted by the 
15 A-0198-20

parties on the motion, together with all legitimate inferences therefrom favoring 

the non-moving party, would require submission of the issue to the trier of fact." 

R. 4:46-2(c). 

II.

We first address plaintiff's arguments related to the motion judge's denial 

of her motion to extend discovery. Plaintiff argues the judge erred because he 

failed to consider discovery was delayed due to the pandemic related Supreme 

Court orders and that the malls were closed by executive order, which prevented 

the escalator from being inspected.4 She notes discovery was only extended 

once and defendants would suffer no prejudice if the court reopened discovery 

to enable her to obtain the repair records for the escalator and a site inspection. 

Rule 4:24-1(c) states: "No extension of the discovery period may be 

permitted after an arbitration or trial date is fixed, unless exceptional 

circumstances are shown." See also Bender v. Adelson, 187 N.J. 411, 426 

(2006). In order to establish exceptional circumstances,

the moving party must satisfy four inquiries: (1) why

discovery has not been completed within time and 

counsel's diligence in pursuing discovery during that 

4 Although defendants argue plaintiff has improperly supplemented the appellate 

record with copies of the Executive and Supreme Court pandemic related orders, 

the certification filed in support of her motion referenced the pandemic related 

orders, and the orders are subject to judicial notice. N.J.R.E. 201(a). 
16 A-0198-20

time; (2) the additional discovery or disclosure sought 

is essential; (3) an explanation for counsel's failure to 

request an extension of the time for discovery within 

the original time period; and (4) the circumstances 

presented were clearly beyond the control of the 

attorney and litigant seeking the extension of time.

[Rivers, 378 N.J. Super. at 79 (citations omitted).]

The record lacks evidence plaintiff acted with diligence in pursuing the 

discovery and we are unconvinced this required the court to extend the discovery 

end date. She did not file a motion to extend discovery until after the discovery 

end date and she failed to explain why. The record does not evince any effort 

by plaintiff to schedule a site inspection, serve expert reports or a notice to 

produce, or demand more specific answers to interrogatories, prior to the 

discovery end date. The mall closure due to the pandemic was not the cause of 

plaintiff's failure to obtain discovery because depositions concluded on October 

29, 2019, and the mall was not closed by executive order until March 21, 2020. 

Exec. Order No. 107 (March 21, 2020), 52 N.J.R. 554(a) (Apr. 6, 2020).

We also reject plaintiff's arguments that the omnibus orders issued by the 

Supreme Court during the pandemic permitted her to ignore the discovery end 

date and to seek to re-open discovery at will. Indeed, beginning with its first 

order dated March 27, 2020, the Supreme Court ordered as follows: "The time 

periods for discovery, including but not limited to interrogatories (Rule 4:17), 
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discovery and inspection of documents and property (Rule 4:18), . . . will be 

extended from March 16 through April 26, 2020[.]" COVID-19—First Omnibus 

Order on Court Operations and Legal Practice para. 3 (Mar. 27, 2020). The 

Court entered a second omnibus order dated April 24, 2020, further extending 

discovery deadlines to May 10, 2020. COVID-19—Second Omnibus Order on 

Court Operations and Legal Practice para. 3 (Apr. 24, 2020). However, the 

Court's third omnibus order issued May 28, 2020, stated the provisions 

extending civil discovery deadlines and pretrial discovery in civil matters had 

concluded. COVID-19—Third Omnibus Order on Court Operations and Legal 

Practice para. 3 (May 28, 2020). The Court's subsequent omnibus orders entered 

on June 11, 25, July 9, July 24, and September 17, 2020 did not further extend 

discovery end dates in civil cases. Furthermore, the Supreme Court's orders 

extended discovery periods, but neither suspended discovery nor addressed reopening of discovery which had already closed. 

Plaintiff failed to meet Rivers factors one, three, and four and did not 

prove the exceptional circumstances necessary to extend discovery. For these 

reasons, the trial judge did not abuse his discretion.
18 A-0198-20

III.

A.

Plaintiff argues summary judgment was improperly granted because there 

were material factual disputes. She asserts the motion judge erred because he 

disregarded the need to complete outstanding discovery because mall security 

footage showed her falling despite holding onto the escalator handrail. She 

argues "[a]n inspection may well have revealed issues with the speed of the 

escalator treads and/or moving handrail" or "supported or refuted the notion that 

the escalator's history of mechanical failures, including one on the day prior to 

the accident, could have contributed to the fall." 

As a general proposition, "summary judgment is inappropriate prior to the 

completion of discovery." Wellington v. Est. of Wellington, 359 N.J. Super. 

484, 496 (App. Div. 2003). However,

[a] party challenging a motion for summary judgment

on grounds that discovery is as yet incomplete must 

show that "there is a likelihood that further discovery

would supply . . . necessary information" to establish a

missing element in the case. The party must show, with 

some specificity, the nature of the discovery sought and 

its materiality to the issues at hand.
19 A-0198-20

[Mohamed v. Iglesia Evangelica Oasis De Salvacion, 

424 N.J. Super. 489, 498 (App. Div. 2012) (citations 

omitted).]

See also Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977) (explaining 

a party raising an incomplete discovery defense has "an obligation to 

demonstrate with some degree of particularity the likelihood that further

discovery will supply the missing elements of the cause of action").

As we noted, the parties completed depositions and exchanged answers to 

interrogatories. Plaintiff did not seek additional documents or more specific 

answers to interrogatories and the discovery period closed. At her deposition, 

plaintiff claimed she fell due to "[a] slippery escalator." For these reasons,

discovery related to the escalator handrail or tread speeds was unrelated to 

proving the escalator was slippery. 

Moreover, after the matter was fully briefed, plaintiff provided us with a 

twenty-eight second surveillance video from a ceiling security camera showing 

her fall. The footage is taken from a distance, plaintiff is only in frame for 

approximately eleven seconds and mannequins obscure a portion of her body, 

including the area by her feet. The video sheds no light on the reason for 

plaintiff's fall. Plaintiff permitted the discovery end date to elapse without 
20 A-0198-20

seeking the escalator repair records and she has not identified how an extension 

of discovery would reveal other relevant facts related to her accident.

B.

Plaintiff also asserts summary judgment was improper because the motion 

judge disregarded evidence demonstrating defendant had constructive notice of 

a slippery substance, namely video of patrons walking through the store with 

food that could have been the substance she slipped on. She argues because 

Bloomingdale's mode of operation was to permit customers to consume food and 

beverages throughout the store, the "heightened risks of food and drink spillage 

comes [with] an increased duty to inspect for and eliminate attendant hazards." 

She also argues there was constructive notice because the escalator was

previously repaired and the Bloomingdale's incident report noted the escalator 

was a contributing factor to plaintiff's accident, "[t]here was ample evidence that 

a mechanical issue with the escalator could have caused or contributed to 

plaintiff's accident." Plaintiff also asserts Bloomingdale's did not produce proof 

of inspection of the escalator following her accident.

In order to sustain a negligence claim, plaintiff has the burden to 

demonstrate four elements: "(1) a duty of care, (2) a breach of that duty, (3) 
21 A-0198-20

proximate cause, and (4) actual damages." Townsend v. Pierre, 221 N.J. 36, 51 

(2015) (citation omitted). As this is a premises liability case, defendants owed 

plaintiff "a duty of reasonable or due care to provide a safe environment for 

doing that which is within the scope of the invitation." Nisivoccia, 175 N.J. at 

563; see also O'Shea, 304 N.J. Super. at 492-93.

Specifically, defendant had an affirmative duty "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. To establish a breach of this duty, plaintiff must demonstrate "that the 

defendant had actual or constructive knowledge of the dangerous condition that 

caused the accident." Prioleau, 223 N.J. at 257 (quoting Nisivoccia, 175 N.J. at 

563).

The parties' respective burdens, however, change substantially under the 

mode of operation doctrine, which addresses "circumstances in which, as a 

matter of probability, a dangerous condition is likely to occur as the result of the 

nature of the business, the property's condition, or a demonstrable pattern of 

conduct or incidents." Nisivoccia, 175 N.J. at 563. When applicable, "[t]he rule 

gives rise to a rebuttable inference that the defendant is negligent, and obviates 

the need for the plaintiff to prove actual or constructive notice." Prioleau, 223 
22 A-0198-20

N.J. at 258. Instead, the defendant has the "obligation to come forward with 

rebutting proof that it had taken prudent and reasonable steps to avoid the 

potential hazard." Nisivoccia, 175 N.J. at 563-64.

"[T]he mode-of-operation doctrine has never been expanded 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." Prioleau, 223 N.J. at 262; see also Walker v. Costco Wholesale 

Warehouse, 445 N.J. Super. 111, 121-24 (App. Div. 2016) (recognizing the 

application of mode of operation liability principles to businesses providing 

goods through "self-service" operations). 

To invoke the doctrine, a plaintiff must prove that the dangerous condition 

arose from the business's self-service operation. "The dispositive factor is . . . 

whether there is a nexus between self-service components of the defendant's 

business and a risk of injury in the area where the accident occurred." Id. at 

262. The doctrine will not apply, however, where there is no evidence that "the 

location in which [the] plaintiff's accident occurred . . . bears the slightest 

relationship to any self-service component of [the] defendant's business." Id. at 

264.
23 A-0198-20

"The absence of [actual or constructive] notice is fatal to [a] plaintiff's 

claims of premises liability." Arroyo v. Durling Realty, LLC, 433 N.J. Super. 

238, 243 (App. Div. 2013) (citing Nisivoccia, 175 N.J. at 563). "The mere 

'[e]xistence of an alleged dangerous condition is not constructive notice of it.'"

Ibid. (alteration in original) (quoting Sims v. City of Newark, 244 N.J. Super. 

32, 42 (Law Div. 1990)).

We have found the mode-of-operation doctrine to apply even when 

plaintiff cannot definitively identify the substance that caused the fall. In

Walker, the plaintiff was shopping at the defendant's warehouse store and passed 

a vendor offering free samples of cheesecake in small paper cups. Plaintiff then 

slipped on a substance on the floor, which he initially perceived as having a 

yogurt-like appearance. 445 N.J. Super. at 114. Plaintiff also noted "his jogging 

pants were 'wet' and 'smeared' from the substance, although he 'couldn't tell [the 

jury] exactly what it was.'" Ibid. (alteration in original). We stated:

We recognize that plaintiff was unable to identify 

with precision the substance on the floor that allegedly 

caused him to slip. There is a plausible basis, however, 

to believe that the white substance could have been 

cheesecake, which may well have become softer, 

creamier, and more "yogurt-like" in appearance after 

being displayed in sample cups for some unspecified 

time at room temperature. Plaintiff's inability to 

describe the substance in more exact terms is 

understandable given the sudden and traumatic nature 
24 A-0198-20

of his fall. Of course, he may well have been mistaken 

in his description and the substance could have come 

from another source, but that is a factual matter for the 

jury to evaluate.

[Id. at 126.]

The wetness of the plaintiff's pant leg in Walker was enough to infer he 

had slipped on a substance causing his fall. We concluded:

The trial court failed to give plaintiff the benefit 

of these reasonable inferences when it declined to allow 

the jurors as fact-finders to consider whether the factual 

predicates for mode-of-operation liability were proven 

here. Although plaintiff has not provided a particularly 

compelling factual basis to support his mode-ofoperation argument, he presented enough evidence to at 

least justify the model charge being issued. 

[Id. at 127.]

Here, plaintiff failed to establish actual or constructive notice of the 

alleged dangerous condition. The record lacks evidence of plaintiff or any other 

person identifying any slippery substance before or after her accident. The facts 

presented here fall short of Walker.

Furthermore, the mode of operation clearly did not apply because 

Bloomingdales did not sell or serve food or drinks and there was no evidence 

the store was near a proprietor selling food or drinks. For these reasons, the 

surveillance video which purports to show a customer holding some sort of 
25 A-0198-20

container is not dispositive. The record lacked evidence of a store policy either 

permitting or prohibiting the consumption of food or drinks inside the store and 

plaintiff did not seek discovery on the matter. 

We next address whether plaintiff's expert report established liability and

thwarted entry of summary judgment. We conclude it did not.

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids 

the admission into evidence of an expert's conclusions that are not supported by 

factual evidence or other data.'" Townsend, 221 N.J. at 53 (quoting Polzo v. 

Cnty. of Essex, 196 N.J. 569, 584 (2008)). It "requires that an expert 'give the 

why and wherefore' that supports the opinion, 'rather than a mere conclusion.'"

Ibid. (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 

144 (2013)). "[A]n expert's bare conclusions, unsupported by factual evidence, 

is inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). 

Plaintiff's expert concluded there were three possible causes of the 

accident: "the escalator handrail stalling, the presence of a slippery material on 

the steps[,] or the entrapment of the [p]laintiff[']s shoe between the step and side 

panel or deflector brush channel." He concluded "Schindler failed to document 

its maintenance" and "Bloomingdale's failed to exercise reasonable care in 

assuring that the escalator was being properly maintained and by failing to 
26 A-0198-20

document any inspections by their personnel to verify that the escalator was 

running properly." 

Again, we note plaintiff did not blame her fall on the malfunction of the 

escalator in general or the handrail in particular. Nor did she state her shoe had 

become entangled in the escalator in any way. As we also noted, there was no 

evidence of the alleged slippery substance in the record. Moreover, plaintiff's 

expert based his opinions only on "[t]he Schindler records of emergency repairs 

to the subject escalator" and the "accident report prepared by Bloomingdale's 

security," and these documents did not reveal any mechanical or handrail 

malfunctions which the expert claimed were the cause of the accident. For these 

reasons, plaintiff's expert opinion was speculative and unsupported by the 

record, and as a net opinion, was not a basis to deny summary judgment.

Finally, plaintiff argues defendants' "esoteric contention that plaintiff 

could not withstand summary judgment because she had no 'expert opinion' to 

causally relate her injuries to the fall" was incorrect because "plaintiff's own 

testimony and a note from plaintiff's treating physician identified the escalator 

fall as the possible cause of her injuries" and "Bloomingdale's own incident 

report likewise describes the severe injuries immediately observed following her 

fall." Neither of these sources established the cause of plaintiff's accident. 
27 A-0198-20

These arguments lack sufficient merit to warrant further discussion in a written 

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

Affirmed.