A New Jersey appeals court has ruled that three minutes is not sufficient time for a supermarket to be put on constructive notice of a hazard that injured a customer.

The appeals court affirmed dismissal of a suit filed by a customer who slipped on shampoo spilled at a ShopRite store. The panel said the judge below correctly granted summary judgment to the store in February 2019 based on a finding that the three minutes that elapsed between the spill and the fall could not create constructive notice as a matter of law.

"Plaintiff offers nothing to suggest that those three minutes during which the shampoo remained on the floor of the pharmacy section provided the supermarket a reasonable opportunity to discover and remove it no matter how diligent its employees, and we agree with the trial judge that no reasonable jury could make such a finding on these facts," the judges said.

Plaintiff Beverly Jackson filed suit against Saker ShopRites Inc. after suffering injuries at a store in Ewing. The store's surveillance video showed a bottle of shampoo was knocked onto the floor in the pharmacy section, dislodging its cap, after a man and two teenagers passed a product display. One of the teens was seen returning the bottle to the shelf and the man was seen restoring the cap. Three minutes later, the video showed Jackson slip and fall when she walked through the same area. The parties agree she slipped on a drop of shampoo the size of a quarter from the bottle that fell from the shelf.

The store's loss prevention specialist testified at a deposition that ShopRite has no written policy governing inspections or spills, but conducts monthly safety meetings with employees. Staff are instructed to watch for hazards and to immediately clean up any spill or wet spot on the floor, or remain at the location until maintenance personnel arrive.

Mercer County Superior Court Judge Kay Walcott-Henderson granted ShopRite's motion to dismiss on summary judgment, finding Jackson failed to carry her burden to show the store had actual or constructive notice of the shampoo on the floor.

Appellate Division Judges Allison Accurso and Lisa Rose, agreed in an unsigned decision, rejecting claims by Jackson that a jury should decide whether three minutes was sufficient time to provide ShopRite constructive notice of the spill, whether the store reasonably inspected the premises for dangerous conditions, and whether it failed to implement safety policies and procedures.

Accurso and Rose wrote that because Jackson was a customer bringing a premises liability case, ShopRite owes her "a duty of reasonable care to guard against any dangerous conditions on its property that the owner either knows about or should have discovered. The standard of care encompasses the duty to conduct a reasonable inspection to discover latent dangerous conditions." In addition, "an invitee seeking to hold a business proprietor liable in negligence must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that cased the accident," the judges said, citing Prioleau v. Kentucky Fried Chicken, a 2015 New Jersey Supreme Court case.

The absence of actual or constructive notice of the dangerous condition is generally fatal to a planitiff's claim of premises liability, Accurso and Rose wrote.

"A defendant has constructive notice when the condition existed 'for such a length of time as reasonably to have resulted in knowledge and correction had the defendant been reasonably diligent,'" Accurso and Rose wrote, citing a 2016 Appellate Division case, Troupe v. Burlington Coat Factory.

Jackson's lawyer, Stuart Tucker of Szaferman, Lakind, Blumstein & Blader in Lawrenceville, did not respond to a request for comment. The lawyer for ShopRite, David Lucas Jr. of Wolff, Helies, Spaeth & Lucas in Manasquan, also did not return a call.