Plaintiff Missed the Mark in Her Claim Against Target (NJ)
In Elzogby v. Target Corp., 2019 WL 3886940 (Aug. 19, 2019), the United States District Court for the District of New Jersey granted summary judgment in defendant Target’s favor because it found that Target did not have notice of an alleged slippery condition, and the mode-of-operation rule did not apply. The decision’s impact is twofold. First, it demonstrates that the court will not be persuaded by a plaintiff’s argument that a defendant has constructive notice only because of its “ample resources.” Second, it demonstrates the narrow reach of the mode-of-operation rule.
Elzogby brought a claim against Target seeking to recover money damages after she slipped and fell on an allegedly wet floor in a Target store. The facts indicated, however, that after her fall Elzogby continued shopping and eventually purchased items. While she shopped, her brother filed an incident report. When asked what the cause of the accident was, Elzogby’s brother reported “water,” but he was “unsure.” Target filed a motion for summary judgment, which the court granted.
The court first reasoned that Elzogby’s conclusory allegation that Target had constructive notice because of its “ample resources,” cameras, and ability to monitor patrons, was not supported by the facts. Elzogby failed to allege specific facts that Target had constructive notice of the water. She did not show how long the water was on floor, or that anyone other than Elzogby saw the water.
Next, the court disagreed with Elzogby’s contention that the mode-of-operation rule applied. Under the mode-of-operation rule, the plaintiff is relieved of proving that the defendant had notice of a dangerous condition where, as a matter of probability, a dangerous condition is likely to occur because of the nature of the business. The mode-of-operation rule generally applies to slip and fall cases that occur in self-service restaurants. In such cases, courts have determined that the nature of the business—usually pouring a drink—creates a high probability of a slippery condition. In Elzogby, however, the mode-of-operation rule did not apply because Elzogby failed to show a causal nexus between the water she allegedly slipped on and a self-service component of Target. Her fall did not occur while she was using a self-service drink station. She did not show that the alleged liquid was from Target and further, she did not fall near any self-service drink station.
Although not binding precedent, Elzogby demonstrates the New Jersey District Court’s reluctance to find negligence based on vague conclusory claims. The court did not agree that a store had constructive notice simply because of its “ample resources.” The court also refused to expand the mode-of-operation rule beyond the circumstances of a self-service restaurant.
Thanks to John Lang for his contribution to this post. Please email Brian Gibbons with any questions.