In a premises liability matter on behalf of a national retailer, Richard Bryan, Esq., a partner in the firm’s Mt. Laurel office, obtained an Affirmance of Summary Judgment in the New Jersey Appellate Division after oral argument on August 17, 2021.
In this case, the plaintiff slipped and fell on clear liquid on a walkway inside the store and suffered a knee injury with surgery. She sought damages in the high six figure range, which included medical lien amounts and wage losses. During discovery, plaintiff admitted that she did not see the liquid before the fall, did not know where it came from and did not know how long it was on the floor before the accident occurred. Plaintiff also denied in discovery that any employees of the retailer made any statements or admissions to her about the happening of the accident. Attorney Bryan filed a Motion for Summary Judgment, arguing that plaintiff failed to establish either actual or constructive notice of the liquid on the floor and that absent such proofs, the claim should be dismissed. In opposition to the Motion, plaintiff served an affidavit, which for the first time alleged that after the accident, a store employee stated to her that he knew the liquid was on the floor and had asked someone to clean it up a “while” before the accident happened. Plaintiff also argued that the accident location was close to the register area and therefore the store should have known the liquid was present before the incident occurred.
Attorney Bryan argued to the trial court that the affidavit submitted by plaintiff was a “sham” affidavit under controlling law because it was directly contrary to plaintiff’s sworn testimony and certified interrogatories. Further, it was argued that an accident location’s “proximity” to a register area cannot establish constructive notice. The trial court agreed with Attorney Bryan’s position and granted summary judgment in favor of the retailer.
On appeal to the New Jersey Appellate Division, plaintiff argued that the affidavit was not a “sham” under the law and that the closeness of the accident location to store employees required a finding that the retailer “should have known” of the existence of the liquid. Plaintiff also argued that the store spoliated video of the area that would have shown when the liquid came to be on the floor. This latter argument was not raised below in the trial court.
The Appellate Division agreed with Attorney Bryan and affirmed summary judgment. It found that plaintiff’s affidavit was a direct contradiction of her prior sworn position in the case and that it was properly disregarded as a “sham” affidavit. The Court further found that the liquid’s “proximity” to cash registers at the store failed to prove constructive notice under applicable law. As to plaintiff’s spoliation argument, the Appellate Division agreed with Attorney Bryan that the same was “procedurally improper and substantively without merit.” As such, the Appellate Division affirmed the dismissal of plaintiff’s case in a matter that involved several relevant issues that are raised routinely by plaintiffs in premises liability claims.