Liability Expert Not Needed for Supermarket Restocking Procedures

By Gina M. Zippilli, Esq.

Who among us is not familiar with the shucking of corn at our local grocery store during the summer months?   In Marvin v. Wegmans Food Markets, Inc., this seasonal ritual turned into a lawsuit after plaintiff fell over a restocking cart that was apparently left behind him, without his knowledge.  2015 N.J. Super. Unpub. LEXIS 168 (App. Div., Jan. 29, 2015).

The facts in Marvin are simple.  It was Fourth of July weekend and Wegmans was packed.  Plaintiff was at the corn bin in the produce section.  While selecting corn, a Wegmans’ employee was loading corn from wooden crates and placing them in the same bin.  The restocking cart, which the employee used to transfer the crates to the corn bin, was behind plaintiff.  Plaintiff placed his corn in a bag, turned around and fell over the restocking cart, which plaintiff claimed to have only seen after he fell.

Plaintiff brought an action against Wegmans for negligence, specifically for the negligent placement of the cart and for failing to warn of its presence.  Wegmans moved for summary judgment and argued that a liability expert was needed to establish the requisite standard of care.  The trial court agreed.   The appellate division reversed, holding that the reasonableness of the employee’s decision to place the restocking cart immediately behind the plaintiff, without first alerting him to its presence, fell within the “common sense experience of the average juror.”  In other words, no expert was needed.

While exceptions to most rules exist, a plaintiff in your average run-of-the-mill slip and fall is not required to establish the applicable standard of care because a layperson’s common knowledge is sufficient to permit a jury to determine whether the particular duty has been breached.  In those cases, it is sufficient for a plaintiff to simply show what the defendant did, or failed to do, and the surrounding circumstances.  In the end, common sense obviates the need for expert testimony.

One must not forget, though, to apply common sense equally across the board.  If plaintiff saw the employee emptying the corn from the wooden crates into the corn bin, then how did plaintiff believe the wooden crates got there in the first place?  After all, who among us is not familiar with the restocking carts?  If the restocking cart was not directly in front of plaintiff, then surely it was somewhere close.  That issue, however, is for another day.