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Monday, October 28, 2013



In this negligence case, plaintiff was injured after she slipped on a telephone calling card that had been discarded on the sidewalk outside of defendant's convenience store. The trial court granted defendant summary judgment, which we affirm.

We reject plaintiff's argument that defendant is liable under the "mode of operation" theory of liability recognized in Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003), and in other customer self-service cases. The present case is dissimilar to the successful mode-of-operation cases in several respects. In particular, the phone card had to be presented to a cashier after it was taken from a self-service rack, making the nexus between the rack and the eventual presence of the card on the sidewalk extremely attenuated. Also, the card stored minutes or value and thus was not debris that would invariably be discarded when its purchaser left the store.

It cannot be reasonably asserted that the store's "method of doing business," see Nisivoccia, 175 N.J. at 564, created the sidewalk hazard. What the purchaser chose to do with the card upon leaving the store was not an integral feature of the store's retail operation. Hence, ordinary principles of premises liability, including plaintiff's obligation to show defendant's actual or constructive notice of a dangerous sidewalk condition, apply.

The trial court properly rejected plaintiff's proffered report from a construction consultant, which included criticisms of defendant's maintenance and trash removal practices. The expert's criticisms comprised inadmissible "net opinions" that were not based on objective standards. Instead, the opinions were based upon the expert's personal experiences, without sufficient substantiation or competent proof that they were prevailing or common in the field. 10-23-13