Plaintiff Irina Galperin suffered an injury when she fell at Macy’s, located in the Garden State Plaza Shopping Center in Paramus, New Jersey, upon stepping from a tile walkway to a carpeted area. While she initially claimed that she fell due to liquid on the floor, she later claimed that she fell when her foot got caught on the edge of the carpet which bordered the tile walkway inside the Macy’s store. The issue in Galperin v. Macy’s, 2023 N.J. Super. Unpub. LEXIS 589 (App. Div. Apr. 19, 2023) was whether plaintiff would be able to maintain a negligence claim against Macy’s in light of her failure to identify the exact dangerous condition which caused her fall and the lack of an expert to identify a breach of duty in the design of the flooring.
In answers to Interrogatories, plaintiff certified “she was caused to slip and fall due to a dangerous condition, namely liquid on the floor.” However, in her deposition, she disavowed this response and stated that she was unable to identify anything on the floor that caused or contributed to the fall. She submitted an amended Interrogatory answer, stating that when she fell, the front of her right foot got caught on the edge of the carpet which bordered the tile walkway. Further, she testified at her deposition that the incident occurred after she stepped off the escalator and walked toward the store’s exit. She stated that there were too many people in the aisle and, while trying to go around the customers, she fell on the border of tile and carpet and struck a table display with a metal frame. As for the cause of her fall, she simply stated it was the border between the tile and carpet.
At the trial court level, Macy’s filed a motion for a summary judgment dismissal, arguing that plaintiff failed to identify a dangerous condition that caused her accident and she did not establish Macy’s possessed actual or constructive notice of any such condition. Further, to the extent that plaintiff was maintaining that the purported height differential constituted a hazardous condition, Macy’s argued that “any claim was beyond the ken of the average juror thereby requiring expert testimony, which she failed to provide.”
The trial court agreed with Macy’s that plaintiff had failed to offer any proof of a dangerous condition. The court rejected plaintiff’s argument that “the mere existence of a transition from tile to a carpet, without even some kind of torn or ripped carpet, broken tiles, or misleveled surface, constituted a dangerous condition.” Further, plaintiff had failed to submit any factual or expert proofs that the flooring violated some code or regulation or standard that a reasonably prudent business owner would meet. The court agreed that a claim that the border between the tile and the carpet created a defect required expert testimony.
Hence, the trial court granted the summary judgment as to Macy’s.
Upon appeal, the plaintiff made the same arguments to the Appellate Division that were made to the trial court. However, the Appellate Division rejected those arguments and agreed with the trial court and noted that the “mere showing of an accident causing the injuries sued upon is not alone sufficient to authorize an inference of negligence.” The Court noted that the plaintiff had failed to identify anything related to the tile or carpet that caused her to fall. The vague statements that her foot caught on the edge of the carpet and something between the tiles and the carpet caused her to fall were found to be insufficient to establish a dangerous condition. Further, the Appellate Division agreed that an expert would be necessary to establish the existence of a dangerous condition that the transition area was dangerous due to a design or installation defect.
Thus, the Appellate Division affirmed the trial court decision, stating that “[i]n light of plaintiff’s inability to identify the circumstances of her fall, expert testimony was necessary to establish the area where she fell was in some manner dangerous, if for no other reason than to exclude other potential causes of the accident and avoid pure speculation by the factfinder.”
