Negligence

Plaintiff Patricia Rieger was shopping at the defendant Loft store in Marlton, NJ when she suffered an injury. She was trying on a scarf and, while viewing herself in the mirror of the common dressing area of the store, she backed up, tripped and fell over a platform behind her. Her trip caused the mannequin on the platform to strike her, injuring her shoulder and elbow. The issue in Rieger v. Ann, Inc., d/b/a/ LOFT, 2017 N.J. Super. Unpub. LEXIS 2582 (App. Div. Oct. 12. 2017), was whether the plaintiff needed an expert to pursue her claim against the defendant store on the theory that the placement of the platform display in proximity to the mirror created a dangerous condition.

The platform was rectangular, about five inches high, and large enough to hold two mannequins. A clothing bar was on each side of the platform and a three way mirror was located just across the platform display. On each side of the mirror, the store had shelves containing scarves. Private dressing rooms were to the left and right side of the mirror.

Plaintiff testified that she did not notice the platform display when she entered the dressing area. At some point, she tried on a scarf, viewed herself in the three way mirror and took a step back for a better view. One of her heels hit the platform, causing a mannequin to fall and injure her.

The defendant obtained an engineering expert report, which report opined that the accident occurred because the plaintiff “failed to maintain a proper lookout in the direction that she was moving before she fell.” The engineer found that the aisle accessway between the mirror and the platform exceeded the requirements of the applicable building code. Plaintiff did not produce an expert report.

The motion judge granted summary judgment to the defendant, finding that plaintiff “failed to demonstrate defendant’s placement of the platform display in the dressing area breached a standard of care that created a dangerous condition.” Plaintiff appealed this decision, arguing that she was not claiming a violation of a building or other code and, thus, did not need an expert to argue that the platform display constituted a dangerous condition. She argued that it was foreseeable that customers often step back while viewing themselves in the three way mirror.

The Appellate Division noted the common law duty of a business owner is “to maintain a safe premises for their business invitees because the law recognizes that an owner is in the best position to prevent harm.” That duty of care includes an affirmative duty to inspect the premises and to discover and eliminate dangerous conditions. In some cases, it is not necessary for a plaintiff to establish the standard of care in a negligence case. However, when a jury lacks the competence to supply the applicable standard of care, then the plaintiff must provide expert testimony to establish the requisite duty of care.

Here the Court found that an expert was needed to establish the applicable standard of care. Expert testimony was needed to establish that placement of the platform display violated pertinent standards of care to create a tripping hazard. The Appellate Division noted that the platform display was not camouflaged, nor protruding into the accessway. The Court held that “the customs and standards for retail store displays and safe clearance conditions are not part of jurors’ common knowledge.”

Without an expert to establish the standard of care, the Court was unable to conclude that the defendant acted unreasonably in its placement of the platform. Hence, the Appellate Division upheld the trial court’s decision to grant summary judgment and dismiss the lawsuit.

Plaintiff Nadine Ambrico was injured when an elevator door closed on her hand and arm. The elevators were maintained by defendant Thyssenkrupp Elevator Corp. on a monthly basis. The issue in Ambrico v. Thyssenkrupp Elevator Corp., 2017 N.J. Super. Unpub. LEXIS 2558  (App. Div. October 13, 2017) was whether plaintiff needed an expert to pursue her claim against the elevator company or if she could prove her cause of action based upon the doctrine of res ipsa loquitor.

Plaintiff was injured while at her place of employment, the Camden County Health Services Building when the elevator door closed on her hand and arm. At that time, her employer, the County of Camden, had a contract with the defendant to maintain the elevators in the building and service them as needed. Defendant inspected the elevators on a monthly basis. The elevator company had last inspected the elevator about 6 weeks before the plaintiff’s accident.

Plaintiff did not submit an expert report, instead contending that no expert report was necessary. The defendant filed for a summary judgment on the basis that an expert report was necessary because the manner in which elevator doors operated was beyond the ken of an average juror.

The plaintiff contended that no expert testimony was needed to prove her cause of action because she was proceeding under the theory of res ipsa loquitor (a Latin phrase which means “the thing speaks for itself”). Plaintiff argued that she met the three elements necessary to utilize this doctrine: “(1) the occurrence itself ordinarily bespeaks negligence; (2) the instrumentality causing the injury was within the defendant’s exclusive control and (3) the injury was not caused by plaintiff’s voluntary act or neglect.”

The trial court found that this doctrine could not be applied because, while the plaintiff met the first and third elements, she was unable to meet the second element, showing that the elevator was in the defendant’s exclusive control at the time of or just before the incident. Thus, the trial court granted summary judgment as to the defendant.

Upon appeal, the plaintiff argued that the court erred in failing to find that the defendant did not have exclusive control over the elevator and that the doctrine of res ipsa loquitor should have been applied. The Appellate Division agreed with the trial court that the plaintiff failed to meet all three elements and, hence, the plaintiff could not utilize this doctrine to prove negligence against the elevator company.

Because of the lapse in time between the defendant’s inspection of the elevator on August 1, 2012 and the incident over six weeks later on September 13, 2012, as well as the absence of any evidence linking the defendant to the malfunction of the door, the Court found that the defendant lacked the requisite control over the elevator to justify the application of res ipsa loquitor.

At the time of the last inspection, the elevator was in proper working order. There was no evidence that the elevator malfunctioned at the time of the accident. The Court noted that there “must be evidence that the defendant exercised control over the subject instrumentality to meet the second prong of this doctrine.” The Appellate Division found that the defendant’s connection to the elevator was “too attenuated” from the accident to conclude that it maintained control over the elevator at that time. Hence, the Court determined that the doctrine of res ipsa loquitor did not apply and it upheld the trial court’s dismissal of the plaintiff’s case.

Plaintiff Cornelia Wright was a tenant, living on the fourth floor of a Jersey City apartment building owned by defendant Premier Business Management, when she fell and was injured, while walking down a dark stairwell in the building.  The building’s power was out due to an electrical power outage in Jersey City from Super Storm Sandy.  The issue in Wright v. Premier Business Management, No. A-3002-15T3, 2017 N.J. Super. Unpub. LEXIS 1415 (App. Div. June 9, 2017), was whether the plaintiff needed an expert to establish the standard of care in a negligence case when it was founded on alleged violations of state and local codes.

When Super Storm Sandy made landfall on October 28, 2012, it caused the apartment building where plaintiff lived to be without electrical power from October 29, 2012 to November 1, 2012.  The building had two stairwells, which lighting was supplied by electrical lamps.  When the electricity in the building was not working, the stairwell landings were lit by emergency lamps powered by six volt batteries.  The emergency lamps were wired to the building’s electrical power, which charged the batteries, and when the power was lost, the batteries no longer received a charge.  The battery power to the emergency lamps was limited to six hours.

At about 9:30 p.m. on October 31, 2012, plaintiff was walking down a dark stairwell in the building, which was lit only by a small flashlight she was carrying.  When she reached the last two steps in the stairwell, she mistakenly believed she reached the ground floor and fell.  She suffered a right ankle fracture due to the fall.

Plaintiff sued, claiming her injuries were as a result of the defendant’s negligence.  She alleged that her injuries were caused by a failure of emergency lighting, as required by numerous state and local codes, and that the defendant maintained and operated the building in a negligent manner so as to cause a hazardous condition.  In her Answers to Interrogatories, which asked her to detail the basis of the defendant’s negligence, she stated that the defendant failed to abide by state and local building codes but did not enumerate further the applicable codes.

The trial court found that it is the plaintiff’s requirement to establish the applicable standard of care when it is beyond a lay person’s common knowledge.  Where a jury lacks the competence to supply the applicable standard of care, the plaintiff must establish the standard by presenting reliable expert testimony on the subject.  However, the plaintiff failed to provide an expert report on the applicable codes. On the defendant’s Motion for Summary Judgment, the court determined that because plaintiff’s negligence claim was founded on alleged violations of state and local codes, expert testimony was required. Thus, it granted summary judgment to the defendant, dismissing the lawsuit.

Upon appeal, the Appellate Division agreed with this holding.  The Court found that plaintiff’s claim that the defendant deviated from a standard of care, defined by state and local codes, required expert testimony.  Expert testimony was required to define the alleged standard and defendant’s alleged deviation from it.

The court also rejected the plaintiff’s argument that her cause of action was viable under the doctrine of res ipsa loquitor.  Based upon this doctrine, if it applied, an inference of negligence would be permitted to establish a prima facie case of negligence.  However, the Court rejected the application of this doctrine because it found that the electrical outage was beyond the defendant’s control and the plaintiff’s negligence claim was based upon alleged violations of the state and local codes.

Accordingly, the Appellate Division upheld the trial court’s decision, dismissing plaintiff’s Complaint.

Plaintiff Mark Krzykalski sued defendants David Tindall and a John Doe, alleging negligence in the operation of their vehicles that caused an accident in which he was injured. At trial, the judge allowed the jury to allocate negligence between defendant Tindall and the fictitiously named John Doe. In the published decision of Krzykalski v. Tindall, 2016 N.J. Super. LEXIS 149 (App. Div. Dec. 5, 2016), the plaintiff appealed this determination to the Appellate Division.

The auto accident occurred on October 24, 2009 at the intersection of Hornberger Avenue and Route 130 in Florence Township. Plaintiff’s vehicle and Tindall’s vehicle were both in the same lane and had slowed to allow an emergency vehicle to enter onto Route 130 from Hornberger Avenue. As they were beginning to move forward, a vehicle driven by a fictitious John Doe passed them, cut in front of them, and crossed their lane to make a left turn onto Hornberger Avenue. Both plaintiff and Tindall braked but plaintiff was unable to stop without striking the vehicle in front of him and Tindall’s vehicle struck the rear of plaintiff’s vehicle.

At trial, plaintiff requested that the John Doe’s negligence be kept from the jury, which motion the judge denied. The jury found Tindall 3% negligent and John Doe 97% negligent for plaintiff’s injuries. On appeal, plaintiff argued that the phantom “John Doe” should not have been placed on the verdict sheet.

Plaintiff contended that a fictitious defendant is not a party to a suit and, hence, the statutory direction that the trier of fact determine “the extent, in the form of percentage of each party’s negligence” is inapplicable to a John Doe defendant. The Appellate Division disagreed, noting that prior case law has held that the consideration of a tortfeasor’s negligence “is not governed by whether that tortfeasor may be said to be a party but turns on whether the other tortfeasor will be affected by the verdict.” The factfinder should be allowed to evaluate the liability of all those potentially responsible.

A nonsettling defendant has a right to have a jury apportion the liability of a settling defendant once it is proven at trial that the settling defendant was negligent. Consequently, the Appellate Division noted that the comparative negligence of a phantom driver, such as a John Doe as in this case, should be considered by a jury in a trial brought by an injured party against another tortfeasor.

The plaintiff tried to distinguish prior case law on the basis that, in this case, no settlement had yet been reached on plaintiff’s uninsured motorist claim against the phantom driver. The Appellate Division rejected that argument.

The Court found no difference between cases in which an uninsured motorist claim had settled before trial or was still pending. In both instances, there remained a need to allocate responsibility between the two tortfeasors. If plaintiff and Tindall had settled before trial, apportionment would be required because Tindall, the remaining defendant, would be “chargeable with the total verdict less that attributable to the settling defendant’s percentage share.” The court found no reason to create a different rule in a situation in which no settlement had yet been reached with the UM carrier. Otherwise, the plaintiff would be able to obtain the full amount of his damages from Tindall and then seek recovery from the UM carrier, which could result in a windfall.

Thus, the Appellate Division upheld the trial court’s ruling, permitting an apportionment of negligence between Tindall and the John Doe fictitious defendant.

Plaintiff Elaine Anderocci was shopping in a retail store known as Reed Krakoff, in the Short Hills Mall, when she reached for a handbag and slipped and fell, fracturing her shoulder. Plaintiff claimed that the floor was very slippery, “like a sheet of glass.” In Anderocci v. Coach, Inc., 2016 N.J. Super. Unpub. LEXIS 2343 (App. Div. Oct. 27, 2016), she sued the retail store, claiming it was negligent because the store’s floor was in a dangerous condition.

The plaintiff obtained an expert report from an expert in wood flooring. He never examined the floor but, nevertheless, opined that the slippery condition of the floor was due to the use of excessive water in cleaning it. The defendant damp mopped the floor three times per week. However, there was no indication in the record as to how much water was used. The expert opined that, if too much water is used when this type of floor is mopped, “crowning” occurs due to a moisture imbalance. This imbalance creates a slippery condition.

After the plaintiff fell, two employees allegedly told the plaintiff that “A lot of people slip in this store” and “We all have to wear rubber-soled shoes here.” The employees later denied making these statements when they were deposed.

The defendant store moved for summary judgment, which was granted by the trial judge. The court concluded that the plaintiff’s expert report should be barred as a net opinion. She ruled that the employees’ statement were inadmissible hearsay. Last, even if these alleged statements were considered, they were not enough to prove negligence. The plaintiff appealed this decision, arguing that the issue of liability should have been presented to a jury.

The Appellate Division agreed with the trial court that the plaintiff’s expert report was an inadmissible net opinion. While the expert appeared to be knowledgeable in aspects of wood flooring, his opinions as to what caused plaintiff’s accident were too speculative to be admissible and were not sufficiently grounded upon factual support in the record. Although the expert did cite to NWFA standards in support of his general theory that excessive moisture used in cleaning may cause wood floors to crown, he failed to have any evidence establishing how much water was used when the floor was cleaned. His opinion simply had an inadequate factual basis and was speculative. Hence, the Appellate Division agreed that his testimony should be barred.

The Court disagreed, however, with the trial judge’s opinion that the statements of the two employees were inadmissible hearsay. The statements were admissible as being made by agents of the defendant. Regardless, the Appellate Division found that the employees’ statements, along with the plaintiff’s own testimony that the floor was slippery was insufficient to establish a cause of action for negligence.

The Court found that the evidence was inadequate to show that the defendant acted unreasonably in its maintenance practices or otherwise in failing to safeguard its customers from this alleged dangerous condition. The Court noted that “it is sheer speculation to deduce that defendants’ employees mopped the wood floor in an improper manner.” The plaintiff failed to argue that the defendant should have posted signs to warn customers of a slippery floor. Thus, the Appellate Division upheld the summary judgment as to the defendant, stating that the defendant is “not strictly liable for the condition of the floor without viable proof of negligence.”

This case points out that not all expert reports are admissible. There must be a factual predicate for the expert’s opinions – which did not exist in this case. Some negligence cases will fail without a liability expert opinion. Thus, if the defendant is able to obtain an order barring the plaintiff’s liability expert report, based upon the net opinion rule, that order may be a prelude to a successful defense motion for summary judgment.

Plaintiff, Marie Richardson, was injured while a passenger on a bus operated by her co-employee, Michelle Herbert (“Herbert”). As the bus approached a traffic light, it rear-ended the vehicle being driven by the defendant Helen Milling. A factual dispute existed as to the color of the traffic light at the intersection where the accident occurred and whether the defendant’s alleged negligence was a proximate cause of the accident. In Richardson v. Milling, 2016 N.J. Super. Unpub. LEXIS 998 (App. Div. May 2, 2016), the plaintiff appealed a summary judgment order dismissing her complaint after the trial court judge found the defendant not to be negligent.

Plaintiff’s only claim was against the defendant Milling because she was barred by the exclusive remedy defense of the Workers’ Compensation Act to sue Herbert, who was a co-employee. Thus, to recover for her injury, she had to prove that defendant, who was rear-ended by Herbert, could be negligent for this accident.

Plaintiff was unable to see the traffic signal at the intersection. Herbert claimed that defendant slammed on her brakes even though the light was green. Defendant asserted that she was travelling about 50 mph, and although almost all nearby vehicles went through the intersection, she stopped because the light was yellow.

Defendant also testified that, when she saw the light was yellow, she checked her rear view mirror and confirmed it was safe to stop. When she saw the bus approaching and realized that it could not stop in time, she took her foot off the brake to minimize potential impact. She claimed that traffic from a Walmart perpendicular to the intersection was travelling into the intersection at the time.

The trial judge concluded that plaintiff could not attribute any fault to defendant because no tickets were issued at the scene. The judge assumed that, due to the Walmart traffic travelling towards plaintiff, the light facing the parties was likely yellow or red. Moreover, the judge found that, even if the traffic light was green, Herbert had a duty to drive a reasonably safe distance from the defendant to avoid a collision. Thus, the trial judge granted the defendant’s motion for summary judgment, dismissing the complaint.

The plaintiff appealed, arguing that the trial judge inappropriately engaged in fact finding, failed to view the record in the light most favorable to plaintiff, and erred in his legal analysis.

The Appellate Division found that the trial judge, when faced with conflicting accounts of the accident, should not have resolved the factual issues in the defendant’s favor.

Prior case law held that, based upon the motor vehicle code, following too closely would constitute negligence. However, the Appellate Division pointed out that “the mere occurrence of a rear-end collision does not automatically establish a driver followed the preceding vehicle at an unreasonable distance.” The finder of fact must consider all the circumstances to determine whether a driver conformed to the relevant standard of care.

Here, there was conflicting testimony as to the color of the traffic light as the defendant and the bus proceeded through the intersection. Just because the defendant was not issued a traffic ticket, that does not mean that she could not be liable in a personal injury lawsuit. A driver operating a vehicle “must exercise reasonable care in the control, management, and operation of his or her vehicle, and a driver has a right to assume other drivers will adhere to this standard of care.”

The Appellate Division found that, when viewing the evidence in the most favorable light as to plaintiff, a jury could conclude that the defendant breached her duty of care by attempting to stop at a green light and that her conduct was a proximate cause of plaintiff’s injuries. The defendant need not be the sole proximate cause of plaintiff’s injuries and any negligence attributable to Herbert would not necessarily bar recovery by plaintiff. Thus, the Appellate Division reversed the trial court’s decision dismissing this case.