Liability of a Slip and Fall, the Business or Landowner Must Have Had Some Kind of Notice That a Dangerous Condition Existed

Lillianthal v. Dunkin Donuts

Docket No.: A-3613-19

Decided November 3, 2021

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

In a recent unpublished decision, the Appellate Division reviewed whether Dunkin Donuts was liable to plaintiff after she allegedly slipped and fell after stepping a green substance on the floor and then a napkin, casing injury.

In Lillianthal, Marcia Lillianthal entered Dunkin with her daughter, Mindi Ann Cohen.  While standing at the service counter, Lillianthal saw a donation card and asked her daughter for a quarter. Lillianthal took a step or two away from the service counter to place the coin in the donation card. According to Lillianthal, her left foot stuck to the floor and impeded her momentum. She then stepped back with her right foot and contended she landed on a napkin, causing her to fall. Lillianthal also claimed there was a green spill of approximately five to eight inches where she fell.

Lillianthal did not see a napkin on the floor. She became aware of the napkin only after her daughter mentioned it. Cohen’s deposition testimony was consistent with her mother’s testimony. After Cohen gave her mother a coin, she heard a “scuffle” and turned to see her mother fall. Cohen purportedly noticed a stray napkin on the floor. Another customer reportedly told Cohen the napkin caused Lillianthal’s fall. Cohen testified the napkin was roughly four to five inches from Lillianthal’s foot. Cohen did not see a sticky substance on the floor before or after her mother’s fall.

Several Dunkin employees gave deposition testimony. Carolyn Namio, Dunkin’s cashier on the day Lillianthal fell, explained the store manager decided daily cleaning and maintenance duties. If no manager was present, the employees would “take it upon [themselves] if [they] saw something out of place or that needed to be done . . . .” Namio testified “the dining room was cleaned and mopped at least once a day during [Namio’s] shift.” According to Namio, Dunkin customers ordered at the service counter and were then directed to a counter on the other side of the store where napkins and supplies were located. Namio did not recall Dunkin selling any green beverages on the date of Lillianthal’s fall.

Achala Wadigamangawa, a district manager for another Dunkin location, provided general testimony regarding operations at Dunkin locations. She testified the manager or shift leader of the particular Dunkin location is required to inspect the floor every fifteen to twenty minutes to determine if maintenance is required. Dunkin employees are instructed to clean up if they see something awry. In the event of an accident, Dunkin employees are trained to tend to the customer first and call an ambulance if necessary.

Dunkin Donuts moved for summary judgment, arguing plaintiff failed to show negligence on account of Dunkin.  The trial court agreed, finding that even if it were true that plaintiff stepped in a sticky green substance then slipped on a napkin, plaintiff presented no evidence that Dunkin employees knew or should have known about the dangerous condition.  In addition, the security footage played showed no substance or napkin present. Plaintiff argued the mode of operation did not require plaintiff to show notice of the condition.  However, the judge found that the mode of operation rule did not apply to this scenario, as there were napkins in an area for customers to get, there was no corroborating evidence on the video or otherwise to show that fall was caused by the napkin.  Plaintiff appealed and the Appellate Division affirmed on the same grounds.

This case is important to understand liability of a slip and fall.  The defendant, usually a business or landowner, must have had some kind of notice that a dangerous condition existed prior the plaintiff falling. There could even be constructive notice placed on defendant if the condition existed for an extended period of time where the defendant should have known it existed but failed to take action. Neither of these existed here.

What’s more, the mode of operation was inapplicable.    In order for the doctrine to apply, one must show that the self-service nature of a business without the handling of employees presented a risk causing plaintiff’s injury. This was not applicable here without further evidence that the self-service napkin station caused the injury.

If you or someone you know has been sexually assaulted, injured in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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