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.
