CAMERON SMITH VS. WALMART STORES, INC.(L-126-13, MORRIS COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0792-15T4
CAMERON SMITH,
Plaintiff-Appellant,
v.
WALMART STORES, INC., WAL-MART
STORES EAST, INC., WAL-MART STORES
EAST I, LP, WAL-MART STORES, INC.,
WALMART STORE NUMBER 2569, and
WALMART, INC.,
Defendants-Respondents.
________________________________________________
Submitted December 20, 2016 – Decided July 31, 2017
Before Judges Suter and Guadagno.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Docket
No. L-126-13.
James C. DeZao, attorney for appellant.
Cottrell Solensky, P.A., attorneys for
respondents (Edward Solensky, Jr. and Mark
M. Makhail, on the brief).
PER CURIAM
Plaintiff Cameron Smith appeals from a Law Division order
entered on September 23, 2015, denying plaintiff's motion for
reconsideration of an order entered on May 8, 2015, which
granted summary judgment to defendant Wal-Mart Stores, Inc. and
dismissed plaintiff's complaint with prejudice.1
On appeal, plaintiff argues that the motion judge erred in
granting summary judgment without considering evidence of
defendant's failure to exercise reasonable care in inspecting
the premises. Plaintiff also argues that the mode-of-operation
doctrine applies.
On January 19, 2011, at approximately 9:45 p.m., plaintiff
was shopping in a store owned and operated by defendant in
Flanders. Plaintiff testified that it had rained earlier that
day and, as she entered the store, she noticed eight to ten
buckets "strategically" placed to catch dripping rainwater near
the entrance. As plaintiff was walking through the store, she
slipped and fell, landing on her right hip and sustaining
injuries.
Plaintiff was accompanied by her boyfriend, Mark Garofalo,
but he did not take the exact same path through the store.
1
Plaintiff's brief suggests she is appealing from both orders,
however, her notice of appeal indicates she is appealing only
from the September 23, 2015 order. Thus, we consider only the
order designated in the notice of appeal. 1266 Apartment Corp.
v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div.
2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463,
465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)).
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Plaintiff testified she slipped on "something wet" and when
Garofalo picked her up, her right side where she landed was wet.
When plaintiff returned home, she felt sore and applied ice
to her buttocks and right hip. The following day, plaintiff
went to a hospital where she was diagnosed with a broken coccyx.
Plaintiff filed a complaint seeking damages for personal
injuries, alleging defendant caused a dangerous condition to
exist.
Plaintiff submitted a report by Michael G. Natoli, P.E.,
who concluded that the wetness on the floor at the time of
plaintiff's accident was an unsafe condition and defendant's
failure to mitigate the wetness was the cause of plaintiff's
injury.
After engaging in discovery, defendant moved for summary
judgment, arguing plaintiff failed to establish that defendant
had notice of the condition. Plaintiff opposed the motion
relying on Natoli's report, defendant's answers to
interrogatories, depositions of two of defendant's employees,
and an unpublished 2010 slip and fall case.2
During oral argument on defendant's motion before Judge
Donald S. Coburn, plaintiff's counsel focused on the water
2
Unpublished cases have no precedential value. R. 1:36-3.
3 A-0792-15T4
dripping into the buckets near the entranceway and suggested
that customers entering the store may have "transferred" that
water to the area where plaintiff fell, approximately twenty
feet away. Judge Coburn noted that no evidence supported this
theory and granted the motion to dismiss plaintiff's complaint.
Plaintiff moved for reconsideration and submitted a second
expert report by Alex J. Balian, identified in his report as a
Retail Industry Consultant. Balian found that the maintenance
procedure at defendant's store, requiring hourly floor
inspection and floor sweeping three times per day, did not
change when inclement weather occurred. From this premise,
Balian deduced that defendant's failure to increase the
frequency of inspections and sweeps on January 19, 2011, "leads
to the conclusion that the water where [plaintiff] fell in was
there long enough that it should have been detected or there for
an unreason[able] length of time."
During oral argument, Judge Coburn refused to consider the
Balian report because a new expert report cannot be submitted on
a motion for reconsideration and plaintiff had not explained why
the report could not have been submitted at the summary judgment
motion. Even if he were to consider the report, the judge found
it to be "a blatantly net opinion."
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Plaintiff's counsel then raised the mode-of-operation
doctrine for the first time.3 Judge Coburn rejected that
argument finding the mode-of–operation doctrine did not apply to
these facts.
"A motion seeking reconsideration of a prior order is
governed by Rule 4:49-2, which requires the movant to explicitly
identify the grounds for the motion to fit within that 'narrow
corridor' in which reconsideration is appropriate." Palombi v.
Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).
Plaintiff's motion for reconsideration was based on an
expert report which was properly excluded. The mode-of-
operation doctrine was never argued during the motion for
summary judgment and plaintiff's attempt to raise the doctrine
for the first time on the motion for reconsideration was
improper. Moreover, the mode-of-operation doctrine is
inapplicable to the facts in this case.
Affirmed.
3
Plaintiff's counsel initially conceded that she had not argued
the mode-of-operation doctrine, but then stated she believed she
had. Our review of the transcript reveals no mention of the
doctrine.
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