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No Napkin, No Trial (NJ)

December 10, 2021

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<p style="text-align: justify;">In a New Jersey Appellate Division decision from last month, a defendant’s award of summary judgment where a slip and fall was captured on video was affirmed.<em> <a href="">Estate</a> of Lillianthal by Cohen v. Baskin-Robbins</em>, 2021 WL 5108555 (App. Div. 2021). In this case, plaintiff fell inside a Dunkin Donuts, purportedly because of a green, sticky substance and errant napkin. Plaintiff did not notice a napkin on the floor until her daughter mentioned it. Cohen, plaintiff’s daughter, testified in her deposition that she noticed a stray napkin on the floor and another customer reportedly told Cohen that the napkin caused plaintiff’s fall. Cohen did not see the sticky green substance on the floor before or after her mother’s fall.</p>
<p style="text-align: justify;">Dunkin employees gave deposition testimony and noted that no green beverages were sold on the date of plaintiff’s fall, no napkin was seen on the floor, and plaintiff purportedly told the Dunkin employees that she “fell over her foot.”  Video footage from the time of the incident was also submitted to the motion judge and no green substance or napkin were visible in the video.</p>
<p style="text-align: justify;">The trial judge granted summary judgment to defendants because they claimed Dunkin lacked actual or constructive notice of the dangerous condition and the mode of operation doctrine was inapplicable in this case. The Appellate Division affirmed the trial court’s grant of summary judgment. The Appellate Division noted that while the mode of operation doctrine would apply to a fall on a napkin in a Dunkin Donuts because napkins are obtained in a self-service manner, there was no corroborating evidence on video or otherwise that plaintiff’s fall was caused by a napkin. Therefore, it was the lack of proof that a self-service component in the Dunkin store caused plaintiff’s fall that defeated plaintiff’s ability to invoke the mode of operation doctrine.</p>
<p style="text-align: justify;">Moreover, the Appellate Division ruled that Dunkin Donuts did not have notice of any dangerous condition. The Appellate Division noted that the record was devoid of any evidence establishing where the substance and napkin came from or how long either had been present prior to plaintiff’s fall, and there was no picture, video footage, or statements from eyewitnesses corroborating the presence of a substance or napkin on the floor. Plaintiff also did not offer any evidence regarding improper surface friction of the floor tiles in the absence of any other slip and falls. Thus, the dearth of proofs in plaintiff’s case proved fatal, and summary judgment for the defense was appropriate.</p>
Thanks to Brendan Gilmartin for his contribution to this post. Please contact <a href="">Heather Aquino</a> with any questions.


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