PATTI HERRING VS. KETTLEMEN'S BAGELS DELI AND GRILL, Â(L-343-14, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-2465-15T1
PATTI HERRING,
Plaintiff-Appellant,
v.
KETTLEMAN'S BAGELS DELI
AND GRILL, and CINTAS
CORPORATION,
Defendants-Respondents.
_______________________________
Argued August 8, 2017 – Decided August 17, 2017
Before Judges Hoffman and Currier.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County, Docket
No. L-343-14.
Brian J. Levine argued the cause for
appellant.
Jerald F. Oleske argued the cause for
respondent Kettleman's Bagels Deli and Grill
(Lebowitz, Oleske, Connahan & Kassar, LLC,
attorneys; Mr. Oleske, on the brief).
Michael B. Devins argued the cause for
respondent Cintas Corporation (McElroy,
Deutsch, Mulvaney & Carpenter, LLP, attorneys;
Mr. Devins and Joseph G. Fuoco, on the brief).
PER CURIAM
Plaintiff Patti Herring appeals from the January 26, 2016
orders for summary judgment entered in favor of defendants
Kettleman's Bagels Deli and Grill and Cintas Corporation. After
a review of the contentions in light of the record and applicable
legal principles, we affirm.
We derive the facts from the summary judgment record viewing
them in a light most favorable to the non-movant plaintiff.
On the day of these events, plaintiff was meeting some family
members at Kettleman's for lunch. She walked into the deli, and
when she did not see her family, she went back out the front door.
When her family arrived, plaintiff reentered the store. As she
did so, she tripped on the upturned corner of a mat that was on
the floor just inside the entrance and fell. Surveillance video
of the store showed another customer had dislodged the corner of
the mat seconds before plaintiff came through the door the second
time.
Kettleman's had contracted with defendant Cintas to provide
several mats for the entrance and counter areas of the store.
Kettleman's owner had not specified any particular sizing for the
mats. The mats had been delivered and put into place by Cintas.
Plaintiff retained the services of an engineer, Wayne F.
Nolte, PhD, PE. In his report, Nolte opined that
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[t]he only reason why the mat at the door
flipped up and created an entrapment hazard
for [plaintiff] was due to it being short[,]
approximately 3'x 5' which placed its end in
a foreseeable customer pathway within the
store, giving opportunity for a customer to
contact the corner and cause it to flip up.
Placement of a ten foot (10') mat in that area
would not have exposed a corner that was free
to be flipped up.
The engineer cited to standards from the American National Standard
Institute and National Safety Council in his report.
Both defendants moved for summary judgment. Kettleman's
argued that it did not create a dangerous condition nor did it
have actual or constructive knowledge of any unsafe condition
within its store. With plaintiff entering the store and stepping
on the upturned mat on the heels of the patron who had dislodged
it, there was no opportunity for a reasonable business owner to
notice and correct the condition. Kettleman's noted there was no
authority cited by Nolte that the mat in place violated any
regulation, statute, code or industry standard.
Cintas contended that plaintiff could not establish its claim
of negligence as the company had delivered the mats to Kettleman's
several days earlier, and no subsequent problems had been reported.
Cintas noted that the surveillance footage showed the mat lying
flat; it was not dislodged until a customer inadvertently kicked
it up. Cintas delivered the mat size specified in its contract
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with Kettleman's and contended that it was under no obligation to
provide a larger mat.
Both defendants argued that Nolte had failed to provide any
support for his opinion that a longer mat should have been used.
Moreover, Nolte had conceded at his deposition that the corner of
a 3' x 10' mat could be flipped up as easily as the mat in this
store. Defendants posited that Nolte's opinion was an
impermissible net opinion, requiring dismissal of the complaint.
In addressing defendants' motions, Judge Margaret Goodzeit
found that expert testimony was required to establish the
appropriate standard of care owed to plaintiff by defendants and
whether Kettleman's had deviated from it. Nolte had provided such
an opinion for plaintiff. However, the judge noted that at his
deposition, Nolte had testified that
he was unaware of any statute, code,
regulation or law that would prohibit the use
of a 3'x 5' mat such as the one that was at
Kettleman's on the day of the accident, nor
was he aware of any industry custom or
standard that would prohibit the use of such
a mat at the entrance of the store.
Judge Goodzeit concluded that the lack of data supporting
Nolte's opinion rendered it an impermissible net opinion. She
stated: "Nolte had no basis to conclude that the subject mat was
either too short, or too light." As a result, plaintiff could not
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support her theory of negligence against either defendant, and the
motions for summary judgment were granted.
On appeal, plaintiff argues that the trial judge erred in
granting the motions. She states that it was reasonably
foreseeable that a 3'x 5' mat placed in the entranceway of this
store could be uplifted by another customer. A longer mat or no
mat at all in this specific area would have been preferable as
either would have "eliminated the exposure of the corner of the
mat to uplift by other customers." She also contends that expert
testimony was not required to support her theory of negligence,
and that Nolte's opinion was not a net opinion.
We review the grant of summary judgment, as we must, using
the same standard as the trial court and viewing the evidence "in
the light most favorable to the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "[T]he
legal conclusions undergirding the summary judgment motion itself
[are reviewed] on a plenary de novo basis." Estate of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).
Kettlemen's, as the proprietor of a store, owed to invitees
such as plaintiff, a duty of reasonable care to guard against any
dangerous conditions on the property of which Kettleman's either
knew about or should have discovered. Hopkins v. Fox & Lazo
Realtors, 132 N.J. 426, 434 (1993). "That standard of care
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encompasses the duty to conduct a reasonable inspection to discover
latent dangerous conditions." Ibid. (citing Handleman v. Cox, 39
N.J. 95, 111 (1963); Restatement (Second) of Torts § 343 (1969)).
"Ordinarily an injured plaintiff asserting a breach of that duty
must prove, as an element of the cause of action, that the
defendant had actual or constructive knowledge of the dangerous
condition that caused the accident." Nisivoccia v. Glass Gardens,
Inc., 175 N.J. 559, 563 (2003). A plaintiff can establish that a
business owner had constructive knowledge of a danger by
establishing that the owner "had an adequate opportunity to
discover the danger and therefore would have discovered it had
[the owner or occupier's employees] been reasonably alert." Bohn
v. Hudson & Manhattan R. Co., 16 N.J. 180, 186 (1954) (citations
omitted).
Plaintiff does not contend that defendants1 had actual or
constructive knowledge of this upturned mat; she argues only that
it was foreseeable that a corner of the mat might be uplifted.
Therefore, plaintiff posits that she has established sufficient
proofs that defendants breached their duty of care. She also
contends that expert testimony was not required for her to meet
her proofs. We disagree.
1
Plaintiff does not differentiate between the defendants in her
arguments on appeal.
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The issue in this case is not whether it was reasonably
foreseeable that a corner of a mat might be uplifted by someone's
foot in this busy store; it is whether the placement of this size
mat in the particular location created a foreseeable risk of
injury. The determination of that issue required expert testimony.
The average juror is not equipped to determine whether the mat
delivered by Cintas and placed in Kettleman's was the proper mat
for the particular location. The jury was not competent to supply
the standard by which to review the defendants' conduct; plaintiff
needed to establish the "requisite standard of care and
[defendants'] deviation from that standard" through reliable
expert testimony. Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 407 (2014) (quoting Giantonnio v. Taccard, 291 N.J. Super.
31, 43 (App. Div. 1996)). Expert testimony is permitted under
N.J.R.E. 702 "to assist the trier of fact to understand the
evidence or determine a fact in issue." And, it is necessary when
the subject matter is beyond the knowledge of the average
layperson. See Schochet v. Schochet, 435 N.J. Super. 542, 550
(App. Div. 2014).
Nolte served as such an expert for plaintiff. But his opinion
that a larger mat was required was not supported by any statute,
regulation, industry standard or code. Some of the standards he
mentioned in his report are not accepted as authority in this
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state. Simply put, Nolte did not rely on anything for his opinion;
that failure renders it an impermissible net opinion. See Saddle
River v. 66 East Allendale, 216 N.J. 115, 123 n.3, 143-144 (2013)
(concluding that an expert's bare conclusions, unsupported by
factual evidence or other data, are inadmissible as a mere net
opinion). An expert is required to "give the why and wherefore
of his or her opinion, rather than a mere conclusion." Rosenberg
v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (citation
omitted).
Plaintiff was unable to support her claims against defendants
without proper expert testimony. Therefore, the motions for
summary judgment were properly granted.
Affirmed.
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