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Employer Found Not Liable for an Auto Accident Caused by an Employee Who Stole Van From Employer

Plaintiff Richard Finaldi (“Finaldi”) was in an automobile accident with defendant Matthew Knight (“Knight”), one of defendant Cornucopia Logistics, LLC’s (“Cornucopia”) dispatchers.  Knight had stolen a Cornucopia delivery van, fell asleep while operating the van, went through a red light and collided with plaintiff Finaldi.  Plaintiff Finaldi suffered serious injuries as a result of the accident.  An issue in Finaldi v. Knight, 2024 N.J. Super. Unpub. LEXIS 7 (App. Div. Jan. 3, 2024) was whether the defendant Cornucopia could be held responsible for its employee’s actions in causing this accident. 

Cornucopia had an agreement with Amazon to deliver groceries ordered through Amazon Fresh.  Pursuant to its agreement, Cornucopia had exclusive responsibility for its employees and employment conditions.  It used leased delivery vans to make the deliveries, which it stored at the Amazon Fulfillment Center in Avenel, where Cornucopia also had an office.

Back at the time of the accident, Cornucopia had several employees at this facility including managers, four dispatchers and about thirty drivers, each for the morning and the night shifts.  Each shift had one dispatcher.  The dispatcher would log in and assign the drivers their routes.  When a driver clocked in, the dispatcher would give them a handbag containing a key to a van, an EZ pass, vehicle registration and insurance and a scanner which permitted the drivers to scan each package in and out.  The scanner also acted as a GPS and had a camera.  It allowed supervisors to see where each driver had dropped off their last package.

When the vans were not in use, Cornucopia kept the keys in a cabinet behind the dispatch table.  It was supposed to be locked after the dispatcher checked in the drivers and gave them their handbags.  Each dispatcher had a key to the cabinet, as well as two of the managers.  The standard operating procedure was for the dispatcher to log in each key and take inventory of those keys.  The dispatcher would count the keys after the drivers returned.  If one of the dispatchers discovered a key was missing, they would see if the vehicle was in the parking lot and, if not, notify one of the managers.

Knight, initially worked for Cornucopia as a driver but, after his license was suspended, he became a dispatcher.  This position did not require driving so he could continue to work at Cornucopia.

The day before the accident, Knight had stolen the van to assist his mother in moving.  His plan had been to return the van to the facility in time for the next shift.  He entered the facility, found the cabinet with the keys to the van unlocked and took one of them.  Only after the accident did Knight inform the Cornucopia fleet coordinator that he had taken the van.  No one at Cornucopia knew the van was missing until after the accident.  According to the testimony, this was the first time that an employee had used a van for personal use. 

Plaintiff sued for Cornucopia for both negligent hiring and retention, as well as general negligence.

At the trial court level, Cornucopia moved for a summary judgment which was granted as to both claims.  The court found that Cornucopia owed no duty to plaintiffs because Cornucopia had no reason to know “that there was an enhanced risk of harm to a third-party by hiring Knight to work as a dispatcher.”  The court also found that there was no history of Cornucopia employees stealing vehicles and that it had adequate security measures in place.

Further, the trial court ruled that plaintiffs failed to establish that Cornucopia’s actions were the proximate cause of plaintiff’s injuries.  The court reasoned that Knight was not working at the time of the accident, he was not using the vehicle with Cornucopia’s permission, and Cornucopia took reasonable precautions to prevent against such actions.

A motion for reconsideration was also denied.  This appeal ensued.  Upon appeal, the Appellate Division noted that the threshold question was whether Cornucopia owed a duty to plaintiffs.  The Court held that for a Court to impose a duty, “there must be a foreseeable risk of harm.”  Plaintiffs argued in the appeal that Cornucopia’s employees did not follow its procedures to prevent and detect the theft of the van.

The Appellate Division rejected that argument.  It found that Cornucopia’s policy in keeping the keys in a locked cabinet, having the dispatcher on duty take inventory of them twice every shift, and that the Avenel facility not being in a high crime area did not result in an imposition of a duty upon Cornucopia. 

Further, the Appellate Division noted that Cornucopia had no reason to suspect an employee would take a van for their own personal use.  Its policies prohibited an employee from taking the delivery vans for their own use and an employee could be terminated for violating that policy. 

Hence, the appeals court declined to follow plaintiff’s argument that the unauthorized use of the van and the accident were sufficiently foreseeable to impose a duty upon Cornucopia.  Moreover, the Court noted that even if it was foreseeable that an employee would steal one of the vans, it could not have known that Knight, who had no prior accidents as a driver for the company, would doze off at the wheel and collide with the plaintiff.  

Additionally, the Appellate Division rejected plaintiff’s argument that Cornucopia was negligent in promoting Knight to a dispatcher position after his license was suspended.  A license suspension alone did not suggest an employee would be deceitful or prone to theft.  It would not have put Cornucopia on notice that he would use its vehicle in violation of company policy.  Accordingly, the Appellate Division upheld the trial court’s decision, dismissing the case as to Cornucopia.

Building Owner Found Not Liable for Injury to Tenant’s Contractor

Defendant Rock Pile Properties, LLC (“Rock Pile”) owned a building in Garwood, which it leased to Defendant Statewide Fence Contractors, LLC (“Statewide”), a residential, commercial, and industrial fence company.  According to the lease, Statewide was required to make all repairs and maintain the property, including the roof.  Plaintiff John Gudoski (“John”), had prior experience working for his father’s company, Statewide Restoration, Inc., restoring and repairing building cracks. He suffered an injury in the course of inspecting a masonry crack from the defendant’s roof.  The issue in Gudoski v. Rock Pile Properties, LLC., 2022 N.J. Super. Unpub. LEXIS 2031 (App. Div. Nov. 3, 2022) was whether defendant Rock Pile could be liable for the injuries suffered by plaintiff when he fell off the roof to inspect a crack.

The facts are somewhat in dispute as to whether John was present on the property as an independent contractor of the tenant Statewide or a friend doing a favor for another friend.  According to Statewide’s owner, John came to the property to look at the building and offer a friend some advice about a crack in the building.  When he arrived, there was an ongoing Labor Day picnic on the premises.  John observed the building perimeter, and he noticed some large cracks in the masonry in what appeared to be a corner separating from the sidewalk. He told Statewide’s owner that he needed to go on the roof to fully examine the crack.  According to several witnesses, Statewide’s owner told John not to go onto the roof.  However, John went up on the roof and, while inspecting it, stepped onto a skylight and fell through it onto the concrete ground.  As a result, he suffered several injuries, including to his shoulder, hand, and mouth.

Plaintiff sued the property owner Rock Pile, as well as Statewide for negligence damages.  Both defendants filed for summary judgment prior to trial.  The motion judge found that while there was a genuine issue of material facts as to the nature of the relationship between John and Statewide, he did grant the summary judgment motion as to Rock Pile.  He found that the owner did not owe a duty of care to John merely because it owned the building.  This order was appealed to the Appellate Division.

Upon appeal, the Court noted that whether a defendant owes a legal duty to another, and the scope of that duty, are generally questions of law for the court to decide.  To determine the scope of the duty, a court would make an inquiry involving “identifying, weighing, and balancing several factors – the relationship with the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution.”

In applying this standard to determine if a duty existed between Rock Pile and plaintiff, the Appellate Division found that none of these factors were met.

The Court found that there was no evidence that John and the defendant owner had a relationship of any type.  The Appellate Division found it was not foreseeable that John would be on the roof and fall through a skylight.  There was no notice, actual, or otherwise to the defendant owner and this defendant neither maintained a presence on the site, nor was it responsible for repairs to the building.  Thus, under these facts, there was no reasonable opportunity for the defendant owner to exercise care.  Finally, the Appellate Division found that they were “unconvinced public policy supports the imposition of liability on defendant, given it was Statewide who brought John onto the property it controlled pursuant to the lease.” 

Thus, based upon the Appellate Division’s review of the facts and the law, it affirmed the trial court decision, dismissing plaintiff’s complaint as to the defendant owner Rock Pile Properties, LLC.

Casino Had No Duty to Protect Patron From Theft of Money Kept in Shopping Bag

Plaintiff, Sridhar Jayaraman, was a guest at Caesar’s Hotel and Casino in Atlantic City for a six-night stay.  While sitting at the bar with his girlfriend, he had with him a black plastic shopping bag, allegedly containing $120,000 in cash.  After he stepped away from the bar, an unknown male later identified as Frederick Exume (“Exume”), approached Plaintiff’s girlfriend, made conversation with her and stole the bag with the money.  The issue in the federal court case, Jayaraman v. Boardwalk Regency, LLC., 2023 U.S. Dist. LEXIS 173841 (D.N.J. Sept. 28, 2023), was whether the casino breached any duty owed to Plaintiff to protect him from the theft of his money.

The incident happened during the early hours of February 8, 2022, when Plaintiff and his girlfriend arrived at the Toga Bar at the Defendant Boardwalk for a night cap.  Plaintiff, while sitting at the bar with his girlfriend had a black plastic shopping bag which allegedly contained $120,000 in cash.  He put the bag on a chair at a high-top table across from his girlfriend and stepped away.  Plaintiff, however, did not advise his girlfriend to watch the bag as he stepped away.

After he stepped away from the table, Exume approached Plaintiff’s girlfriend to make conversation with her.  After conversing with her, he reached under the table, extracting the bag without her detection, and then exited the casino.  Upon returning from the restroom, Plaintiff noticed the bag was missing and contacted Boardwalk Security.

Boardwalk Security investigated the incident and identified Exume through video surveillance as the individual that stole the bag.  The casino was familiar with Exume because two days previously, Exume was ejected from the casino for public urination and permanently barred by Boardwalk from its premises.  However, Boardwalk first learned that Exume was back on its premises only after Plaintiff reported the incident to the casino security and the casino security officers watched the theft on video surveillance.

Two days prior to the incident, Plaintiff had been approached by the casino security and advised not to carry large sums of money on his person in a shopping bag.  Security then escorted Plaintiff to his hotel room so that he could store his money in the safe provided in his room.

The defendant casino filed a motion for summary judgment, arguing that it breached no duty owed to Plaintiff and the case should be dismissed. In reviewing the arguments submitted in support of the defendant casino’s motion for summary judgment, the District Court noted that the existence of scope of a duty of care are legal issues to be determined by the court.  The Court noted that Boardwalk owed Plaintiff a duty of care to maintain safe premises.  That general duty included a duty to protect patrons from foreseeable criminal acts of third parties occurring in their premises. 

Boardwalk argued that it did not owe Plaintiff a duty to protect him from Exume’s conduct because it did not know or have reason to know that Exume would steal Plaintiff’s property.  Plaintiff, on the other hand, argued that Boardwalk owed Plaintiff a duty to protect him from the foreseeable criminal acts of others, such as Exume’s.  He contended that it was foreseeable that a theft of property would occur on the floor of a busy Atlantic City casino.  Further, Plaintiff argued that it was reasonably foreseeable that a person permanently banned from a casino – no matter the reason – but later re-entered would commit the crime of theft.

However, the District Court noted that a foreseeability analysis would have to be conducted.  The Court noted that, under the law, a defendant business “should reasonably anticipate careless or criminal contact on the part of third persons . . . and may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” 

With this duty in mind, even if the Court assumed that Exume’s theft of the money was foreseeable third-party criminal conduct and, thus, a duty should be imposed, which the Court did not decide, “Plaintiff must still provide some evidence that Boardwalk breached its duty to either; “(1) provide sufficient security services to afford Plaintiff reasonable protection from Exume’s conduct; or (2) take reasonable precautions to protect against Exume’s criminal conduct.”  The District Court found that the record contained no evidence to show either theory of a breach.

The Court noted that Plaintiff’s only argument for how Boardwalk breached its duty of care was that it should have enforced its ban of Exume from the premises.  However, the District Court found no evidence suggesting that Boardwalk failed to provide security services, or it otherwise failed to take reasonable measures to protect Plaintiff from Exume’s conduct. 

The Court noted that the casino security had warned Plaintiff to not carry large sums of money on his person in a shopping bag.  Further, that security escorted Plaintiff to his hotel room to store the money in a safe.  Thus, based upon this evidence, Boardwalk did maintain security services that were cognizant of the risk to a patron carrying large sums of money in an unsecured bag and took precautions against future thefts by advising Plaintiff to keep his winnings in a safe provided by Boardwalk.

Further, the Court found that Plaintiff did not provide evidence that Boardwalk failed to take reasonable precautions to enforce its ban of Exume. Boardwalk was not under a duty to stop any and all criminal conduct from occurring.  Rather, a business owner only had a duty to take precautions against criminal conduct that was foreseeable to the business owner.

Here, Plaintiff provided no evidence that Boardwalk or its security services failed to take reasonable steps to prevent Exume from entering the premises or that it failed to take reasonable steps to prevent the theft from occurring.  Plaintiff offered no suggestions for what more Boardwalk could have done to ensure Exume did not enter the premises after being banned.  Further, the Court noted that there was no evidence that Boardwalk knew Exume was on the premises but failed to remove him or that Exume did anything that reasonably should have apprised Boardwalk’s security of Exume’s presence. 

Thus, the District Court found that there was no genuine dispute of material fact as to a breach in this matter because of Plaintiff’s failure to provide evidence to suggest Boardwalk breached its alleged duty owed to Plaintiff.  Thus, the Court found that even if Boardwalk owed Plaintiff a duty, its motion for summary judgment must be granted because there was no evidence to establish Boardwalk breached that duty.  Therefore, the Plaintiff’s complaint was dismissed. 

Township Found to Have No Liability for Injury Caused by Trip Over Pothole in Shoulder of Road

Plaintiff Patrice Powers-Feigel was walking on the shoulder of Nosenzo Pond Road in West Milford when she slipped on gravel and her foot got caught on the edge of a pothole or uneven pavement.  She tripped and fell into the street, resulting in serious injuries.  The issue in Powers-Feigel v. Township of West Milford, 2023 N.J. Super. Unpub. LEXIS 495 (App. Div. Apr. 3, 2023), was whether the Township could be responsible for a pedestrian accident caused by a trip in a pothole located in the shoulder of a road.

Prior to her fall, plaintiff had walked in the same area about 25 times before without incident.  On that date, she had to walk around the base ring of a construction barrel on the shoulder before she fell.  The parking lot across the street from where she fell was under construction.  There was no walkway or sidewalk in the area where she was walking.

After her fall, plaintiff retained an engineering expert who opined that the crack in which she caught her foot measured 2½ inches wide by 1¼ deep.  He stated that the pavement surface was uneven and lacked a physical border to the pavement at the edge of the roadway, causing a tripping hazard.  He relied upon standards pertaining to walkways and sidewalks in concluding the shoulder was a dangerous condition.  He did not cite to any standards for roadway shoulder lanes in his report.

Plaintiff sued the Township of West Milford claiming that there was a dangerous condition that caused her accident.  During discovery, the supervisor of the Department of Public Works testified that the roadway was inspected weekly and cracks over ½ inch would require repair.  Plaintiff contended that this area of the shoulder could be construed as a bicycle path and further because three schools were located nearby, plaintiff asserted that recreational activity was not only the shoulder lane’s foreseeable use but it’s “intended and encouraged” use.

The defendant moved for a summary judgment dismissal, finding that the defendant was not liable to plaintiff under the New Jersey Tort Claims Act.  The court noted that the plaintiff “failed to establish the following necessary dangerous condition elements: (1) that the shoulder lane created a substantial risk of injury when it was used with due care in a reasonably foreseeable manner; and (2) that defendant had actual or constructive notice of the shoulder’s condition.”

With regard to plaintiff’s expert, the court rejected his opinion that the shoulder of a rural roadway must comply with the standards for walkways and sidewalks.  Further, the Court rejected the plaintiff’s contention that a public entity must maintain shoulder lanes used by pedestrians to the same degree that they would maintain a sidewalk.  The court found no evidence that demonstrated the shoulder on this road was considered a “pedestrian walkway” by defendant.  The court concluded that the shoulder lane was not dedicated or intended for pedestrian traffic and no dangerous condition existed on the roadway.  This appeal followed that decision.

Upon appeal, the plaintiffs advanced the same argument that the shoulder’s condition created a substantial risk of injury and was a dangerous condition.  Further, that the defendant Township had actual or constructive knowledge of the shoulder’s condition.

The Appellate Division noted the well settled principle of the Tort Claims Act is that “immunity from tort liability is the general rule and liability is the exception.”  Further, that “the mere happening of an accident on public property is insufficient to impose liability upon a public entity.”

More specifically, the Court noted that for the condition to be considered a “dangerous condition,” the “property that creates a substantial risk of injury when such property is used with due care in the manner in which it is reasonably foreseeable that it will be used.”  It must be considered that the condition of the property cannot be minor and it must be considered together with the anticipated use of the property.

Case law has defined the term “used with due care” to mean an “objectively reasonable” use. 

Based upon the facts and the legal principles in this case, the Appellate Division found that the trial court properly granted summary judgment and affirmed that decision.  The Appellate Division reasoned that cracks in a highway may constitute a dangerous condition when the highway’s roadway or shoulder are used in a foreseeable manner.  However, the term “roadway” constitutes the portion of a highway ordinarily used for a vehicular travel and the “shoulder” is “that portion of the highway, exclusive of and bordering the roadway, designed for emergency use but not ordinarily to be used for vehicular travel.”

The Appellate Division concluded that based upon the facts of this case, “that no reasonable jury could find the pothole or long depression cracks or divots gave rise to a substantial risk of injury” to plaintiff.  Essentially, the Court found that the use of a shoulder was not intended for an exercising pedestrian.

Further, the plaintiff had failed to present any evidence that defendant had actual or constructive notice of the condition of the shoulder prior to her fall.  Plaintiff admitted to walking there 25 times before without noticing anything dangerous or hazardous about the shoulder surface.  The roadway was inspected weekly for defects.  There was no proof of similar accidents in the vicinity.  The Appellate Division was satisfied that the trial court correctly found that defendant did not have actual or constructive notice of any dangerous condition that caused plaintiff’s fall and the Township’s inspection scheme was not “palpably unreasonable.”

Thus, the Appellate Division agreed with the trial court’s decision to grant summary judgment and affirmed that decision, dismissing the lawsuit. 

Mall Owner Not Liable to Plaintiff Injured on Interior Department Store Staircase

Plaintiff Thomas Seltzer, an employee of Bloomingdale’s, was injured when he fell on a staircase used solely for Bloomingdale employees in the store.  He sued the mall owner Riverside Square for negligence, claiming that it had some degree of control over the staircase which allegedly had irregular steps.  The issue in Seltzer v. Riverside Square Limited Partnership, 2023 N.J. Super. Unpub. LEXIS 453 (App. Div. Mar. 27, 2023) was whether the defendant mall owner owed a duty to plaintiff if it did not own or maintain Bloomingdale’s or the interior staircase.

Bloomingdale’s, which was built as a stand-alone department store in 1959, was now part of a 2-level enclosed shopping mall constructed around it.  The mall was owned and operated by Riverside Square.  Under the terms of an agreement with Bloomingdale’s, Riverside Square had no authority to modify Bloomingdale’s or the staircase.

The defendant Riverside Square moved for a summary judgment dismissal, contending that it owed no duty to Seltzer because it did not own or maintain Bloomingdale’s or the staircase.  The trial court judge denied summary judgment.  The court found that “there are genuine issues of material fact relative to both the subject accident and the issue of control and the degree thereof, regarding the overall area where [Seltzer] had his trip and fall accident is a disputed fact.”  The court felt that it had to accept Seltzer’s version of facts, and as such grant him the benefit of all inferences that such facts support. 

Riverside Square filed an application before the Appellate Division on an interlocutory basis, seeking leave to appeal.  The Appellate Division agreed to accept the interlocutory appeal. [“Interlocutory” means the appeal is filed before the final conclusion of the case.]

The Appellate Division disagreed with the trial court’s decision.  The Court found that the trial court was incorrect in finding that there were genuine issues of material fact.  The Appellate Division pointed out that there was no question that there was a valid agreement concerning Riverside Square’s responsibility and obligations toward Bloomingdale’s property.

The Court further held that Riverside Square did not owe a duty to Seltzer.  It pointed out that the staircase where Seltzer was injured was part of Bloomingdale’s premises when the department store was built, long before the mall was built.  The Court noted that there was no support in the record for Seltzer’s contention that Riverside Square “retains some degree of control and responsibility over issues such as repairs and maintenance, even on property of its admitted tenant Bloomingdale’s.”  Additionally, the Appellate Division held that under the clear terms of the agreement with Bloomindale’s, Riverside Square had no obligation to maintain any aspect of Bloomingdale’s premises.  Further, there were no facts indicating Riverside Square exercised any control or maintenance over the staircase that would contradict its interpretation of the agreement.

Thus, Seltzer’s liability expert’s opinion concerning the construction and maintenance of the staircase was “of no import” because Riverside Square did not construct the staircase and had no duty to ensure it could be safely traversed.

Thus, the Appellate Division found that there were no genuine issues of material facts in dispute and that Riverside Square was entitled to summary judgment as a matter of law.  Therefore, it reversed the trial court’s order denying summary judgment and remanded the case back to the trial court for an entry of an order granting summary judgment dismissal of Seltzer’s action.

Plaintiff’s Loading Dock Injury Claim Dismissed Due To Failure To Obtain Liability Expert Report

Plaintiff Paomar Konteh was picking up a shipment at defendant McCollister’s Technical Services Inc.’s warehouse in New Jersey when he suffered an injury attempting to roll the defendant’s computer cabinets from the loading dock onto the back of his truck.  He sued the defendant McCollister for his injuries based upon several theories of liability.  The issue in Konteh v. McCollister’s Tech. Servs., 2022 N.J. Super. Unpub. LEXIS 888 (App. Div. May 24, 2022) was whether the plaintiff’s claim was subject to a dismissal for failure to obtain an expert report as to liability. 

The plaintiff’s accident occurred when defendant’s warehouse employee asked plaintiff to help him load the defendant’s cabinets onto the back of the truck.  The plaintiff was transporting in his truck certain four-wheeled computer cabinets, known as “Netshelters.”  The Netshelters can weigh up to 3000 pounds.   As the two men were attempting to roll the first cabinet from the loading dock onto the back of the truck, it fell on plaintiff, causing him injuries. 

Plaintiff had a number of theories as to defendant’s liability, including whether the ramp was defective, whether the other defendant’s employee did not properly align the ramp, whether the defendant’s employee should not have continued pushing once the wheel became stuck, whether the defendant’s employee pushed the cabinet with too much force, whether the defendant did not have sufficient personnel for the loading, whether or not the defendant heeded warnings and had proper safety measures, and whether the defendant should have had a lift for heavy merchandise.

In answers to discovery, plaintiff stated that he was caused to fall when the wheel of the cabinet became stuck in a crack or separation in the floor.   The defendant produced an OSHA report confirming that the dock plates were in proper working condition in the month prior to the accident.  In his deposition, plaintiff acknowledged that he had previously loaded Netshelters with the assistance of only one other person. 

The truck was connected to the warehouse loading dock via a dock plate that automatically lifted and lowered to form a ramp between the two.  However, even when properly set, it left a gap.  Plaintiff stated that the defendant’s out of state workers (when he made out of state deliveries) always covered the gap with a piece of metal, unlike in New Jersey, where they simply pushed “with power” to get the Netshelter onto the dock plate.  When the Netshelter’s first wheel rolled into the gap, it became stuck and fell on him.

The plaintiff never produced an expert report, despite having discovery extended twice for him to do so.  Following the close of discovery, the trial judge entered an order, barring the plaintiff from serving any liability expert report.  That motion was unopposed.

The defendant filed a summary judgment motion, arguing that the case should be dismissed due to the plaintiff’s failure to produce a liability expert report.  The trial judge pointed out that it is the “plaintiff’s burden to prove that the dock plate used by the defendant was defective or dangerous or substandard.”  The plaintiff’s theory that the elevation difference between the loading dock and the hydraulic dock plate was dangerous or defective did require expert testimony.  It would be “beyond the ken of an average juror to understand what was defective or dangerous.”  Further, plaintiff was aware of the height difference and there was no indication that plaintiff was concerned about a defective condition on the property.  Thus, the trial court judge ruled that the plaintiff’s claim would be dismissed for the failure to produce a liability expert report.

This decision was appealed to the Appellate Division.  The standard utilized by the Appellate Division to review the trial court ruling to dismiss the case due to the failure to produce an expert report was the “abuse of discretion” standard.  Under the case law, an “abuse of discretion occurs when a decision is made without a rational explanation, inexplicably departed from established policies, are rested on an impermissible basis.” 

The Appellate Division pointed out that in most negligence cases, a plaintiff is not required to retain an expert to establish the applicable standard of care.  However, in some cases, a jury would not be competent to supply the standard by which to evaluate the defendant’s conduct and therefore, the plaintiff must present the testimony of a liability expert.  To determine whether a plaintiff must produce a liability expert, a court must consider “whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the defendant was reasonable.” 

Here, the Appellate Division agreed with the trial court judge that the plaintiff was required to retain an expert to be able to pursue his claim.  The Court pointed out that “although the average person knows from common experience that a wheel can become stuck in a gap, causing a wheeled object to topple, the average person is not equipped to consider the physics of loading unusually heavy objects, and the point at which a gap between flooring, or changes in elevation, become dangerous.”  Further, because the plaintiff advanced different theories of liability, it could not be “reasonably expected” for a jury to be able to decide liability based upon those different theories.

The Court also noted that, in a different context, an accident from pushing a heavy object over irregular flooring might not require expert testimony.  But here, OSHA had found nothing deficient in the dock ramp and the plaintiff had used this ramp many times before to maneuver a Netshelter onto the back of his truck with just one person to help him.  Because the plaintiff was uncertain as to what caused the accident, and his description conflicted with the defendant employee’s description and involved trucking industry standards, the Court found that the need for an expert report and expert testimony was clear.  Thus, the Appellate Division ruled that the judge’s decision was not an abuse of discretion and affirmed the decision, dismissing the case. 

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