Plaintiff Cameron Smith was shopping at defendant Walmart’s store at 9:45 pm when she slipped and fell on water inside the store. She landed on her right hip, sustaining injuries. In Smith v. Walmart Stores, Inc., 2017 N.J. Super. Unpub. LEXIS 1964 (App. Div. July 31, 2017), she claimed the defendant store failed to exercise reasonable care in inspecting the premises.
Plaintiff testified that it had rained earlier in the day and that, as she entered the store, she noticed eight to ten buckets placed to catch dripping rainwater near the entrance. Smith fell about 20 feet from the entrance and theorized that customers entering the store may have “transferred” that water to the area where she fell.
Plaintiff had submitted an expert report from an engineer who concluded that the wetness on the floor at the time of her accident “was an unsafe condition and defendant’s failure to mitigate the wetness was the cause of plaintiff’s injury.” The trial judge found no evidence to support that the water came from these rainwater buckets and granted the motion to dismiss the complaint.
On a motion for reconsideration, the plaintiff submitted a second expert report from a “retail industry consultant” who opined that the maintenance procedures of the store, requiring hourly “sweeps,” did not change during inclement weather. Thus, the expert concluded the water where plaintiff fell was there long enough where it should have been detected.
While the trial court refused to consider this new report on a motion for reconsideration, even if he were to consider it, the judge found it to be a “blatantly net opinion.” The plaintiff’s counsel also raised the mode of operation doctrine for the first time during the oral argument on the motion for reconsideration. The judge also rejected that argument, finding that it did not apply based upon these facts.
The Appellate Division upheld the trial court’s dismissal of this matter. It found that the trial court properly excluded the second expert report. As for the mode of operation doctrine, the Appellate Division agreed that it was inapplicable to the facts of the case.
