IVAN TYMIV VS. LOWE'S HOME CENTERS, LLC (L-6536-17, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-0222-20
IVAN TYMIV and
OKSANA TYMIV,
Plaintiffs-Appellants/
Cross-Respondents,
v.
LOWE'S HOME CENTERS, LLC,1
Defendant-Respondent/
Cross-Appellant,
and
AHMED HASSAN,
Defendant-Respondent.
_____________________________
Submitted May 18, 2021 – Decided July 30, 2021
Before Judges Fisher and Gummer.
1
Plaintiff referred to this defendant as "Lowes Home Centers, LLC" in the
caption of the complaint. We utilize "Lowe's Home Centers, LLC" in the
caption because defendant used that name in its court submissions.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-6536-17.
Richard A. Vrhovc, attorney for appellants/cross-
respondents.
Goldberg Segalla LLP, attorneys for respondent/cross-
appellant (Thomas M. Crino, Thaddeus J. Hubert, IV,
H. Lockwood Miller, III, and Sara L. Sapia, on the
briefs).
Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys for respondent (Jeffrey J. Czuba, of counsel
and on the brief).
PER CURIAM
In this case involving a physical altercation between a customer and an
employee of defendant Lowe's Home Centers, LLC, plaintiffs appeal orders that:
granted summary judgment in favor of Lowe's; granted partial summary
judgment on negligence claims in favor of the Lowe's employee, defendant
Ahmed Hassan; precluded portions of testimony of plaintiffs' vocational and
economic experts; and permitted testimony of Lowe's' biomechanical-
engineering expert. Lowe's cross-appeals the court's denial of its motion to bar
plaintiffs' retail-industry expert and decision to preclude police officers' lay
opinions about how the altercation occurred. Because the motion judges erred
in granting the summary-judgment motions and in precluding in part testimony
from plaintiffs' vocational and economic experts, we reverse those orders .
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Because the motion judges did not err in permitting the testimony of plaintiffs'
retail-industry expert and Lowe's' biomechanical-engineering expert, in barring
opinion testimony of responding police officers, and in denying related
reconsideration motions, we affirm those orders.
I.
Lowe's hired Hassan as a flooring customer sales associate on May 4,
2017. Hassan previously had been employed by Lowe's as a cashier in the
summers of 2013 and 2015. He had no prior experience as a customer sales
associate or in the flooring department. A customer sales associate is
responsible for "[p]rovid[ing] superior customer service by assisting customers
in selection, demonstration, and purchase of product[s] . . . [and] provid[ing]
quick responsive customer service." A customer sales associate's "essential
knowledge" and "skills" include "[u]nderstand[ing] and respond[ing]
appropriately to basic customer . . . inquiries" and being able "to
operate/demonstrate/explain merchandise in the assigned area." A customer
sales associate is required to wear a clean uniform and a name tag. 2
2
According to an assistant manager at the store where Hassan was employed,
new employees in training have a "training tag" on them so a customer can see
the tag "and understand that, if they're not a subject matter expert, be a little bit
more patient with them, where they might reach out to another associate for
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3
According to plaintiffs' retail-industry expert, at the time of the parties'
altercation, Hassan had not yet completed all of his training, including a
computerized training module entitled "Impacting the Customer." That training
module contained twenty-eight separate videos explaining how to interact with
customers to create a "positive customer experience" and included one skit with
instructions on how to interact with an upset customer and multiple videos with
instructions on how to react to a customer who approaches and says, "You
people must not know what you're doing . . . ." Hassan also had not received
training on Lowe's written Workplace Violence Procedure, which defined
workplace violence as including "aggressive contact directed toward another
individual" and stated "[a]ny employee who commits workplace violence will
be subject to disciplinary action up to and including termination." For their first
seven to fourteen days, new employees are paired with a mentor, who is an
associate in the store with a working knowledge of different areas of the store.
According to a Lowe's training video, a new employee will receive training time
to shadow more experienced employees before working by themselves and must
assistance." A picture taken from a video recorded by a responding police
officer's body camera shows Hassan was wearing a name tag at hip level. A
photograph of the name tag showed it did not indicate Hassan was in training.
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earn a red vest before working alone and before helping customers. 3 Even
though he was a new employee who had not completed his training and had not
yet earned the red vest, Hassan was the only person assigned to work in the
flooring department at the time of the altercation.
On May 13, 2017, nine days after Lowe's had hired Hassan as a customer
sales associate, plaintiff Ivan Tymiv, who worked in the construction field,4
went to Lowe's with a client to purchase supplies, including grout, for a home-
remodeling project. According to plaintiff, he entered an aisle, which contained
grout, and saw his client talking to Hassan. Plaintiff overheard Hassan give the
client inaccurate information about grout. Plaintiff wanted unsanded grout and
asked Hassan which grout was unsanded. Hassan told him he did not need
unsanded grout for the type of tile he would be using. Plaintiff disagreed with
Hassan's advice and told him if he did not know what he was talking about, he
3
According to plaintiffs' retail-industry expert, these procedures – being paired
with a more experienced co-worker, having an experienced co-worker assigned
to the department where the new employee is working, and not permitting a new
employee to work alone in a department until after completing a training period
– are consistent with accepted and standard practices in the retail industry.
4
Plaintiff testified he was self-employed with another partner in a business.
That business was called Eagle Team NYC, LLC, which, according to plaintiffs'
economic expert, was a partnership formed by plaintiff's wife Oksana Tymiv
and someone else in March 2017.
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should not say anything but should "[j]ust learn [a] little more about it, and then
tell [it] to the customers." Hassan became angry, screamed and cursed at
plaintiff and the client, and said he had a Ph.D. in history and did not have to
learn about "this shit." Hassan turned around and walked away.
While holding a bag of grout, plaintiff and the client followed Hassan to
the next aisle and repeatedly asked for his name. Hassan turned around, walked
towards plaintiff, asked plaintiff what he was going to do, and hit the bottom of
the grout bag with his hand, knocking it out of plaintiff's hand and into the air
and causing it to burst open. Hassan also punched plaintiff in the face with his
hand and a broom he was carrying and then ran away. Plaintiff told another
employee he had been struck by an employee and told her he wanted to speak to
a manager and the police. The police came but accused plaintiff of assaulting
Hassan, asking him why Hassan had grout on his head and back. Plaintiff left
the store in an ambulance and went to a hospital. He asserts he is totally disabled
as a result of the injuries he sustained in the altercation.
Hassan has a different recollection of the altercation. According to
Hassan, he approached plaintiff and the client and asked if he could be of any
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assistance.5 Plaintiff asked him about the difference between sanded and
unsanded grout. After Hassan stated his understanding of the difference,
plaintiff told him he should learn more. Hassan explained to him he was still in
training and his knowledge was "very limited." Plaintiff questioned how Hassan
could be working on the floor if he did not know the difference between sanded
and unsanded grout. Hassan described plaintiff as going "immediately from zero
to 100 angry." Believing the situation was becoming confrontational, Hassan
walked away. Plaintiff followed him, yelling at him and demanding his name;
Hassan was in fear for his life. He felt something hit the back of his neck, head,
and shoulder. Hassan glanced back, saw "white stuff" on his shoulder and saw
plaintiff with a clenched fist about to punch him. Hassan attempted to use a
"sweeper" to block the punch, hitting plaintiff in the face with it. Hassan
described his actions as a "defensive measure." As plaintiff continued to follow
him, Hassan found a co-worker, told her he had been assaulted, asked her to call
5
Contrary to the Lowe's training video stating a new employee in training must
earn the red vest before helping customers, Lowe's' regional human resources
manager for the store where Hassan was employed testified all customer service
associates, even those still in training, are encouraged to approach customers "to
give them service and to help them." The store manager also testified an
employee in training could approach a customer before earning a red vest.
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security and the police, and went to a break room. After leaving the store that
day, Hassan never returned and was fired for job abandonment.
II.
Plaintiff and his wife Oksana Tymiv filed a complaint against Lowe's and
Hassan and subsequently amended the complaint. Plaintiffs alleged Lowe's
negligently supervised and trained defendant Hassan.6 In a subsequent letter,
plaintiffs' counsel advised defense counsel plaintiffs were amending their
interrogatory answers to state "Hassan was acting within the scope of his
employment at the time of the incident and therefore . . . Lowes is vicariously
liable under the doctrine of respondeat superior." In addition to asserting
generally Hassan was negligent, plaintiffs alleged in the amended complaint
Hassan's conduct constituted the "intentional and offensive tort of battery."
During the course of discovery, Lowe's produced a report prepared by a
purported biomechanical-engineering expert, Jacob L. Fisher, who opined the
"grout bag was not launched into the air by a single blow from [Hassan], rather
it was thrown . . . on a trajectory that roughly paralleled the path taken by
6
We take that summary of plaintiffs' allegations from plaintiffs' appellate brief.
To the extent plaintiffs' amended complaint could be interpreted as containing
other allegations concerning Lowe's, we do not address them because plaintiffs
did not address them. See N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J.
Super. 501, 505 n.2 (App. Div. 2015).
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[Hassan] along the aisle." Given his findings regarding the trajectory of the
grout bag, he concluded plaintiff's account of the altercation to be "inconsistent
with the physical evidence gathered and recorded" while Hassan's account was
"largely consistent" with the evidence.
Plaintiffs produced a report from a "retail industry consultant," Alex J.
Balian, who opined Lowe's had failed to follow its own employee-training
procedure or the industry standard for training and had been negligent in its
supervision of Hassan. Plaintiffs also produced a report from a vocational
expert, Edmond Provder, who opined because of the injuries plaintiff had
sustained in the altercation, plaintiff is unable to continue his work as a
construction supervisor, in which he could earn annually $75,000. Provder
estimated plaintiff had sustained a total loss of $2,340,000 in earning capacity.
Plaintiffs also produced a report from economist Kristin Kucsma, who evaluated
"the economic losses" to plaintiff as a result of his alleged injury and concluded
the "total present value of past and future pecuniary losses" resulting from his
alleged injury was $3,418,466.
After discovery closed, the parties moved in limine to exclude each other's
experts' testimony and plaintiffs moved to bar opinion and other testimony from
the police officers who responded to the subject incident.
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The motion judge denied Lowe's' motion to bar the testimony of plaintiffs'
retail-industry expert, finding Balian to be qualified to render the opinion
"because of his hands-on experience in training managers and employees in
retail stores" and "vast exposure to training manuals and operating procedures
of retail stores throughout the country." The judge also found Balian's opinion
was based on "generally-accepted standards in the industry and is not a net
opinion" and that "[t]he standard of care required for training and supervising
employees in the retail industry is not something which the average juror would
be able to determine." The motion judge subsequently denied Lowe's' motion
for reconsideration of the denial of this motion.
The motion judge denied plaintiffs' motion to bar the testimony of Lowe's'
biomechanical expert, finding his expertise was "outside the ken of the average
juror and [his opinion] is not a net opinion."
The motion judge granted plaintiffs' motion to bar the testimony of the
police officers, precluding them from testifying about "their opinions of how the
incident occurred" but permitting them to testify about "any factual issues that
they observed, including plaintiff's demeanor, [being] evasive with answers,
defensive, arrogant, and the like." Denying Lowe's' subsequent motion for
reconsideration of that decision, the motion judge again held the police officers
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could testify about their personal observations, such as where the grout was
located, but could not testify as to "their opinion about who with what."
Lowe's moved for summary judgment, arguing plaintiffs could not
establish Lowe's was negligent in hiring, training, or supervising Hassan
because plaintiffs failed to establish Lowe's had breached any standard of care
and Lowe's could not be held vicariously liable for Hassan's alleged battery
because his actions were not within the scope of his employment.
The motion judge granted Lowe's' summary-judgment motion, dismissing
with prejudice plaintiffs' complaint against Lowe's. Viewing the case as "an
assault," the judge held plaintiff had failed to prove "proximate cause between
the lack of training of defendant Hassan, red vest status, lack of name tag, or
shadowing polices and the assault of plaintiff by defendant Hassan." In addition,
the motion judge found Lowe's could not be held vicariously liable because
"there are no facts that a rational fact finder could construe that . . . Hassan . . .
assaulted plaintiff [in] an effort to serve the employer, Lowe's." The motion
judge also found Lowe's could not be held responsible because Hassan's actions
were "clearly inappropriate or unforeseeable" and "totally unexpected ." The
judge concluded Lowe's' "training or lack of is simply not applicable to this
case."
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Lowe's moved to bar the testimony of plaintiffs' vocational and economic
experts. Hassan joined in that motion. A different motion judge granted in part
and denied in part that motion. The motion judge held the experts could testify
about "life plans" given the "underlying medical testimony." "[W]ith respect to
the future economic loss," he held plaintiffs could not "use or rely on testimony
[about] a $75,000 annual salary" calculation. The judge found both "experts
have offered a net opinion about loss wages. There is no evidence in the record
that this – salary has ever been [earned] – by the plaintiff." The judge held:
The expert, as far as it can be determined, – selected an
employment – through the Department of Labor
statistics, opined that the plaintiff was qualified for that
position and that the average salary that was listed on
that table should be the foundation for which economic
calculations should be based. There is not enough
factual material . . . that would support that figure as
being the equivalent of a lodestar for calculating
economic loss.
The motion judge also rejected plaintiffs' attempt to prorate plaintiff's income
from certain months to calculate economic loss. The judge found:
Again because of the nature . . . of his business, . . . to
rely on the proposed number . . . projections of a newly
formed, self-owned business are not truly factual. Such
a business is subject to the uncertainties in changing
economic conditions. The sample size is too small to
extrapolate . . . $91,000 a year--; especially since no
further evidence has been provided regarding costs and
expenses of the ongoing business. . . . [I]t may not be
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relied upon by the plaintiff . . . and cannot be
introduced.
The motion judge concluded plaintiffs' experts could "talk about life plans, but
they cannot talk about $75,000 or $91,000 as in the baseline for plaintiff's
economic loss as that is speculative." In a written order the motion judge
directed that Provder and Kucsma were "permitted to testify about the life plan"
but were "barred from testifying or using $75,000 or $91,000 as the
measurement of wage loss to calculate future losses" because those figures were
"not based on [p]laintiff's prior employment history."
Hassan moved for partial summary judgment on plaintiffs' negligence
claims against him, arguing plaintiffs had not plead sufficient facts to support a
negligence claim given that they alleged only that Hassan acted with the intent
to cause plaintiff harm by striking him. In opposition, plaintiffs argued "a jury
could find that [Hassan] was guilty of both negligen[ce] and acting
intentionally."
The judge who had decided the motion regarding plaintiffs' vocational and
economic experts granted Hassan's motion for partial summary judgment and
dismissed all negligence claims against Hassan with prejudice. The motion
judge found "plaintiff has failed to establish any duty or obligation [d]efendant
Hassan had to protect plaintiff from injury or breach there[from]." The judge
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held "[w]ithin the context of customer/employee relations, there is no such
obligation imposed on an employee not to commit assaults on customers."
Therefore, the motion judge found "no genuine issue of material fact that
Hassan's conduct constitute[d] negligence." Plaintiffs and Hassan subsequently
agreed to dismiss with prejudice the remaining claims against Hassan.
III.
In this appeal, plaintiffs argue the motion judge erred in granting Lowe's'
summary-judgment motion, noting the motion judge did not address plaintiffs'
allegations of negligent supervision and contending a sufficient causal nexus
existed between Lowe's' alleged negligent training and supervision of Hassan
and Hassan's altercation with plaintiff and that Hassan was acting within the
scope of his employment at the time of the altercation. 7 Plaintiffs also appeal
the order granting Hassan's motion for partial summary judgment, arguing the
physical confrontation at issue demonstrates a failure by Hassan to exercise
7
Plaintiffs argue for the first time on appeal that California's enterprise liability
standard of respondeat superior should be adopted and applied to this case. We
do not reach that argument given that we for other reasons reverse the order
granting Lowe's' summary-judgment motion and because plaintiffs did not raise
it in the trial court. See N.J. Div. of Youth and Fam. Servs. v. M.C. III, 201 N.J.
328, 339 (2010) (finding that "issues not raised below will ordinarily not be
considered on appeal unless they are jurisdictional in nature or substantially
implicate the public interest").
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reasonable care, Hassan had a duty not to commit an intentional tort, and, given
the disputed facts, a juror could conclude Hassan's negligence caused plaintiff's
injuries. Plaintiffs appeal the order denying plaintiffs' motion to bar the
testimony of Lowe's' biomechanical-engineering expert, arguing the expert's
opinions were inconsistent with physical evidence, flawed because the expert
had not conducted recreation experiments and had not interviewed witnesses,
were net opinions, were not beyond the ken of an average juror,
mischaracterized testimony, or were otherwise inaccurate. Finally, plaintiffs
appeal the order precluding evidence regarding plaintiff's lost earning capacity,
arguing plaintiffs' vocational and economic experts' opinions were supported by
plaintiff's work and earning history.
In response, Lowe's argues the motion judge correctly granted its
summary-judgment motion because Hassan was not acting within the scope of
his employment when he assaulted plaintiff and, thus, Lowe's could not be held
vicariously liable for his actions; and plaintiffs failed to establish Lowe's was
negligent in training or supervising Hassan or that any such negligence
proximately caused the altercation. Lowe's contends the motion judge correctly
denied plaintiffs' motion to bar testimony from Lowe's' biomechanical-
engineering expert, asserting the expert was qualified and that his opinion had a
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sufficient factual basis and would be helpful to a jury. Lowe's argues the motion
judge did not err in precluding plaintiffs' vocational and economic experts from
testifying about plaintiff's lost earning capacity because their opinions were
speculative and not based on the evidence.
Lowe's cross-appeals the orders denying Lowe's' motion to bar the
testimony of plaintiffs' retail-industry expert, granting plaintiffs' motion to
exclude opinion testimony from the responding police officers, and denying
Lowe's' related reconsideration motions. Lowe's argues the motion judge erred
in not barring the retail-industry expert's testimony because his opinion was a
net opinion, he improperly relied on Lowe's' internal policies, and the subject of
his opinion was not beyond the ken of an average juror. Lowe's argues the
motion judge erred in barring the police officer's opinion testimony about how
the incident occurred because their opinions are based on their perceptions and
observations pursuant to N.J.R.E. 701.
Responding to plaintiffs' appeal of the order granting his motion for partial
summary judgment, Hassan argues the motion judge correctly determined the
facts cannot support a claim of negligence against Hassan.
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A.
We review a grant of summary judgment using the same standard that
governs the trial court's decision. RSI Bank v. Providence Mut. Fire Ins. Co.,
234 N.J. 459, 472 (2018). Under that standard, summary judgment will be
granted when "the competent evidential materials submitted by the parties,"
viewed in the light most favorable to the non-moving party, show there are no
"genuine issues of material fact" and that "the moving party is entitled to
summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38
(2014); see also Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017); R.
4:46-2(c).
"An issue of material fact is 'genuine only if, considering the burden of
persuasion at trial, the evidence submitted by the parties on the motion, together
with all legitimate inferences therefrom favoring the non-moving party, would
require submission of the issue to the trier of fact.'" Grande, 230 N.J. at 24
(quoting Bhagat, 217 N.J. at 38). We owe no special deference to the trial court's
legal analysis. RSI Bank, 234 N.J. at 472.
1.
"The fundamental elements of a negligence claim are a duty of care owed
by defendant to the plaintiff, a breach of that duty by the defendant, injury to
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the plaintiff proximately caused by the breach, and damages." Robinson v.
Vivirito, 217 N.J. 199, 208 (2014).
Proximate cause is "a basic element of tort law" that "defies precise
definition." Cruz-Mendez v. ISU/Ins. Servs. of S.F., 156 N.J. 556, 575 (1999);
see also New Gold Equities Corp. v. Jaffe Spindler Co., 453 N.J. Super. 358,
379 (App. Div. 2018). Courts have recognized "but for" and "substantial factor"
forms of causation. Komlodi v. Picciano, 217 N.J. 387, 422 (2014); see also
Conklin v. Hannoch Weisman, P.C., 145 N.J. 395, 417 (1996); Vuocolo v.
Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 294-95 (App. Div. 1990).
"But for" causation applies in cases involving "only one potential cause of the
injury or harm." Ibid.; see also Evers v. Dollinger, 95 N.J. 399, 415 (1984)
(finding in "the more routine tort case . . . the law requires proof that the result
complained of probably would not have occurred 'but for' the negligent conduct
of the defendant"). "Substantial factor" causation applies "when there are
concurrent causes potentially capable of producing the harm or injury." Ibid.;
see also Brown v. U.S. Stove Co., 98 N.J. 155, 171 (1984) (finding "a tortfeasor
will be held answerable if its 'negligent conduct was a substantial factor in
bringing about the injuries,' even where there are 'other intervening causes which
were foreseeable or were normal incidents of the risk created'") (quoting
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Rappaport v. Nichols, 31 N.J. 188, 203 (1959)). "A substantial factor is one that
is 'not a remote, trivial or inconsequential cause.'" Id. at 423 (quoting Model
Jury Charge (Civil), 6.13, "Proximate Cause – Where There is a Claim that
Concurrent Causes Harm are Present and Claim that Specific Harm was not
Foreseeable" (approved May 1998)).
Negligent supervision and training "are not forms of vicarious liability
and are based on the direct fault of an employer." G.A.-H. v. K.G.G., 238 N.J.
401, 415 (2019). To prove negligent supervision or training, a plaintiff "must
prove that (1) an employer knew or had reason to know that the failure to
supervise or train an employee in a certain way would create a risk of harm and
(2) that risk of harm materializes and causes the plaintiff's damages." Id. at 416.
The motion judge granted Lowe's' summary judgment on plaintiffs' direct
negligence claims against Lowe's because he determined "proximate cause does
not exist." He made that determination even though "[g]enerally, the
determination of proximate cause is an issue of fact for the [factfinder]." Cruz-
Mendez, 156 N.J. at 576. "Only in the rare case in which 'it appears to the court
highly extraordinary that [the actor's conduct] should have brought about the
harm,' will courts remove the issue of proximate cause from the jury." Ibid.(quoting Caputzal v. Lindsay Co., 48 N.J. 69, 78 (1966)); see also Broach-Butts
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v. Therapeutic Alts., Inc., 456 N.J. Super. 25, 41 (App. Div. 2018) (requiring
court to apply the highly-extraordinary standard when determining the actor's
conduct was not the legal cause of another's harm).
The motion judge erred in granting summary judgment as to plaintiffs'
direct negligence claims against Lowe's on the basis of his determination that
"proximate cause does not exist." Even if the judge had applied the highly-
extraordinary standard in determining as a matter of law that "proximate cause
does not exist" – and he didn't – the record evidence would support sending the
question of proximate cause to the jury. Viewing the facts in a light most
favorable to plaintiffs, a reasonable factfinder could conclude Lowe's knew of
the importance of training new customer service associates to interact with
customers, including unhappy customers questioning whether the customer
service associate knew what he was doing, to ensure a "positive customer
experience" and of pairing a new customer service associate with an experienced
associate while still in training. Yet, despite that and contrary to industry
standards, Lowe's assigned Hassan to work alone and unsupervised in the
department before he had completed his training. It was for the jury, not the
judge, to determine whether Lowe's failed to train and supervise Hassan
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properly, and, if so, whether that failure was a substantial factor in causing the
harm at issue in this case.
2.
The motion judge also erred in granting summary judgment on plaintiffs'
vicarious-liability claim. "The imposition of vicarious liability upon employers
for the acts of an employee, also known as the doctrine of respondeat superi or,
is based upon the idea that the employee is the agent . . . of the employer." G.A.-
H., 238 N.J. at 415. "Under respondeat superior, an employer can be found
liable for the negligence of an employee causing injuries to third parties, if, at
the time of the occurrence, the employee was acting within the scope of his or
her employment." Carter v. Reynolds, 175 N.J. 402, 408-09 (2003).
Courts have considered four factors in determining whether an employee's
action is within the scope of employment. Davis v. Devereux Found., 209 N.J.
269, 303 (2012). An employee's action is within the scope of employment if:
(1) "it is of the kind he is employed to perform"; (2) "it occurs substantially
within the authorized time and space limits"; (3) "it is actuated, at least in part,
by a purpose to serve the [employer]"; and (4) "if force is intentionally used by
the [employee] against another, the use of the force is not unexpected by the
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[employer]." Ibid. (quoting Restatement (Second) of Agency § 228 (Am. Law
Inst. 1958)).
"The question of whether an individual acted within or outside the scope
of employment often arises in the context of intentional wrongful acts of the
individual employee that the corporation disavows in order to avoid respondeat
superior liability." Vosough v. Kierce, 437 N.J. Super. 218, 235 (App. Div.
2014). An employee's intentional or reckless action may be considered within
the scope of employment. Id. at 235-36. As our Supreme Court recognized in
Davis, "[w]hen the employee's conduct – however aggressive and misguided –
originated in [an] effort to fulfill an assigned task, the act has been held to be
within the scope of employment." 209 N.J. at 303; see also, e.g., Gibson v.
Kennedy, 23 N.J. 150, 154-57 (1957) (holding evidence supported finding that
train conductor, who had testified he was acting in self-defense, was acting
within the scope of his employment when he struck a passenger); Mason v.
Sportsman's Pub, 305 N.J. Super. 482, 489-500 (App. Div. 1997) (tavern's
bouncer, who testified patron had hit and threatened him, was acting within
scope of employment when he injured patron); Schisano v. Brickseal Refractory
Co., 62 N.J. Super. 269, 275-76 (App. Div. 1960) (holding employee could have
been acting within the scope of his employment when he hit the plaintiff). "The
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fact that the employee's conduct is intentional and wrongful does not in itself
take it outside the scope of his employment." Vosough, 437 N.J. Super. at 236.
When an employee's assigned duties "place the employee in situations in
which physical consequences may follow in an uninterrupted sequence from
verbal exchanges with third parties[,] . . . [i]t is a question of fact what
motivated an employee's conduct as verbal exchanges escalate or when an
employee's use of physical force becomes more pronounced." Restatement
(Third) of Agency § 7.07 cmt. c (Am. Law Inst. 2006). "An escalation in the
pitch of an employee's conduct does not by itself transform the conduct into an
independent course of conduct that represents a departure not within the scope
of employment." Ibid.
When an employee's actions are "so far removed from the scope of his
duties," the employee is not considered to be acting within his scope of
employment. Vosough, 437 N.J. Super. at 236; see also, e.g., Davis, 209 N.J.
at 306-07 (finding counselor's premeditated act of throwing burning water onto
a patient was not within scope of employment).
Hassan's actions are not "so far removed from the scope of his duties" that
the motion judge could decide the issue of vicarious liability in a summary-
judgment motion. Unlike Davis, this case did not involve an employee's
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premeditated attack. Under either plaintiff's or Hassan's factual scenario, the
altercation began with an employee performing his job in his assigned
department by interacting with and providing information to a customer, the
employee and customer engaged in a verbal exchange, and that verbal exchange
escalated to a physical altercation. Whether that escalation transformed
Hassan's actions into "an independent course of conduct" outside the scope of
his employment, see Restatement (Third) of Agency § 7.07 cmt. c, or whether
his actions were unexpectable by Lowe's under the circumstances, Davis, 209
N.J. at 303, was for a jury to decide.
3.
The motion judge erred in granting Hassan's motion for partial summary
judgment. In Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520(1995), our Supreme Court summarized the "essence" of a court's "inquiry" in
deciding a summary-judgment motion: "whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one -
sided that one party must prevail as a matter of law." Id. at 536 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)); see also Vizzoni
v. B.M.D., 459 N.J. Super. 554, 567 (App. Div. 2019).
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Here, the evidence is not so one-sided that Hassan is entitled to prevail as
a matter of law. Genuine issues of material fact clearly exist based on plaintiff's
and Hassan's differing views of the altercation and what led to the altercation.
The record contains sufficient evidence to support a jury finding that Hassan
intentionally assaulted plaintiff. The record also contains sufficient evidence –
including Hassan's own testimony – to support a jury finding that Hassan acted
negligently in inadvertently striking plaintiff while attempting to block
plaintiff's punch. Accordingly, whether Hassan's actions constitute negligence
or an intentional act should be decided by a jury, and not a judge in a summary-
judgment motion. 8
B.
A trial court's decision concerning the admission of expert testimony into
evidence is entitled to our deference and is reviewed under an abuse-of-
discretion standard. Townsend v. Pierre, 221 N.J. 36, 52 (2015). An abuse of
discretion occurs when a judge's decision "was not premised upon consideration
8
The motion judge stated in his decision: "[w]ithin the context of
customer/employee relations, there is no such obligation imposed on an
employee not to commit assaults on customers." It would seem self-evident that
at a minimum a store employee has an obligation not to assault the store's
customers. Even if it wasn't self-evident, Lowe's' Workplace Violence
Procedure makes it clear that assaulting a customer could result in termination.
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of all relevant factors, was based upon consideration of irrelevant or
inappropriate factors, or amounts to a clear error in judgment." Masone v.
Levine, 382 N.J. Super. 181, 193 (App. Div. 2005); see also State v. S.N., 231
N.J. 497, 515 (2018).
N.J.R.E. 702 and 703 frame the analysis for expert-testimony
admissibility. Townsend, 221 N.J. at 53. N.J.R.E. 702 imposes three basic
requirements:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art such
that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to
offer the intended testimony.
[Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992).]
See also Townsend, 221 N.J. at 53. Those requirements “are construed liberally
in light of Rule 702’s tilt in favor of the admissibility of expert testimony.” State
v. Jenewicz, 193 N.J. 440, 454 (2008).
Pursuant to N.J.R.E. 703, an expert opinion must be based on "facts or
data derived from (1) the expert's personal observations, or (2) evidence
admitted at the trial, or (3) data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data normally relied upon by
experts in forming opinions on the same subject." State v. Townsend, 186 N.J.
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473, 494 (2006) (quoting Richard Biunno, New Jersey Rules of Evidence 896
(2005)); see also Townsend, 221 N.J. at 53.
Rule 703's corollary, the net opinion rule, "stands for the proposition that
an expert opinion must have a rational basis" and prohibits admitting an expert's
opinion into evidence if its conclusions are not supported by factual evidence or
data. Crispino v. Twp. of Sparta, 243 N.J. 234, 257 (2020). "[T]he net opinion
rule requires an expert witness to give the why and wherefore of his expert
opinion, not just a mere conclusion.” Jimenez v. GNOC, Corp., 286 N.J. Super.
533, 540 (App. Div. 1996); see also Crispino, 243 N.J. at 257. "[B]are
conclusions, unsupported by factual evidence, [are] inadmissible." Buckelew v.
Grossbard, 87 N.J. 512, 524 (1981); see also Fin. Servs. Vehicle Tr. v. Panter,
458 N.J. Super. 244, 257 (App. Div. 2019).
The net opinion rule does not impose a "standard of perfection."
Townsend, 221 N.J. at 54. Rather, it "is a prohibition against speculative
testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997). A
judge should not admit expert testimony "if it appears the witness is not in
possession of such facts as will enable him to express a reasonably accurate
conclusion as distinguished from a mere guess or conjecture." Vuocolo, 240
N.J. Super. 289, 299 (App. Div. 1990). However, an expert's testimony should
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not be excluded simply "because it fails to account for some particular condition
or fact which the adversary considers relevant." State v. Freeman, 223 N.J.
Super. 92, 116 (App. Div. 1988). The net opinion rule does not "mandate that
an expert organize or support an opinion in a particular manner that opposing
counsel deems preferable." Townsend, 221 N.J. at 54. That an expert declines
"to give weight to a factor thought important by an adverse party does not reduce
[the expert's] testimony to an inadmissible net opinion if [the expert] otherwise
offers sufficient reasons which logically support his opinion." Rosenberg v.
Tavorath, 352 N.J. Super. 385, 402 (App. Div. 2002). Instead, the purported
deficiencies in the expert's opinion may be "a proper 'subject of exploration and
cross-examination at a trial.'" Ibid. (quoting Rubanick v. Witco Chem. Corp.,
242 N.J. Super. 36, 55 (App. Div. 1990), modified on other grounds, 125 N.J.
421 (1991)).
Under that legal framework, we see no abuse of discretion in the motion
judge's denial of plaintiffs' motion to exclude the testimony of Lowe's'
biomechanical expert. Dr. Fisher opined about the trajectory of the grout bag
and dispersion of grout and set forth the factual bases for his opinions. As the
motion judge correctly held, Dr. Fisher's expertise was "outside the ken of the
average juror and [his opinion] is not a net opinion." Plaintiffs' arguments
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regarding purported errors in Dr. Fisher's report and criticisms about what Dr.
Fisher should have done provide the bases for cross-examination, not the
exclusion of Dr. Fisher's testimony. As for Dr. Fisher's comments regarding
whether plaintiff's or Hassan's testimony is consistent with his conclusion s
regarding the physical evidence, we are confident the trial judge and trial
counsel will be mindful of the long-standing rule that experts may not opine
about the credibility of witnesses. See State v. J.R., 227 N.J. 393, 411 (2017);
State v. McLean, 205 N.J. 438, 453 (2011).
The motion judge abused his discretion in barring plaintiffs' vocational
and economic experts from "testifying or using $75,000 or $91,000 as the
measurement of wage loss to calculate future losses."
In a personal-injury case, an "injured party has the right to be compensated
for diminished earning capacity." Caldwell v. Haynes, 136 N.J. 422, 433 (1994);
see also Donelson v. DuPont Chambers Works, 206 N.J. 243, 258 (2011).
Diminished-earning-capacity damages are based on the plaintiff's lost wages and
"include[] the value of the decrease in the plaintiff's future earning capacity."
Ibid. The plaintiff must present sufficient factual evidence from "which the
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quantum of diminishment can reasonably be determined." Coll v. Sherry, 29
N.J. 166, 176 (1959).9
The vocational expert set forth the factual basis for using $75,000 as the
measurement of wage loss to calculate future losses: plaintiff was a
"construction supervisor" for the last two businesses for which he had worked
or owned and $75,000 is the average earnings of construction supervisors in
plaintiff's county. The economist used $75,000 based on the vocational expert's
finding. The experts, thus, set forth the "why and wherefore" of their opinions,
Jimenez, 286 N.J. Super. at 540, and the motion judge erred in striking their
testimony as net opinions. Defendant is free at trial to challenge the experts'
opinions, arguing, as it does in this appeal, that plaintiff never actually earned
that amount and likely would not earn that amount. But, again, that is the basis
for cross-examination, not a finding of a net opinion. 10
9
Because the "proper measure of damages for lost income in personal-injury
cases is net income after taxes," Ruff v. Weintraub, 105 N.J. 233, 238 (1987),
parties may present evidence regarding what a plaintiff's net income was or
would be, including evidence of a plaintiff's income-tax obligation. Caldwell,
136 N.J. at 434-36.
10
The parties' dispute about the $91,000 figure apparently is not based on any
finding or opinion of plaintiffs' experts, but on plaintiff's testimony concerning
his earnings. Again, defendant is free at trial on cross-examination to challenge
the credibility of that testimony. The motion judge's reliance on Bell Atlantic
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The motion judge did not abuse his discretion in denying Lowe's' motion
to bar the testimony of plaintiffs' retail-industry expert. Balian explained the
factual bases of his opinions, and, as the motion judge correctly found, Balian
demonstrated sufficient experience in the retail industry to qualify as an expert
in the field, he stated his opinions were based on industry standards and
practices, and the standard of care required for training and supervising retail-
industry employees is beyond the ken of an average juror. On cross-
examination, defendant may challenge Balian's understanding of industry
standards or its training materials, but, again, that is not a basis to exclude his
testimony.
Finally, the motion judge did not abuse his discretion in barring the
responding police officers from testifying about "their opinions of how the
incident occurred." The judge did not by rote bar their testimony but expressly
held the officers could testify about "any factual issues that they observed,
including plaintiff's demeanor, [being] evasive with answers, defensive,
arrogant, and the like." His ruling is appropriate under the circumstances and
Network Services, Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 101 (App. Div.
1999), a business dispute with "enormous complexity of the multiple business
relationships" and "new, highly innovative products whose reception by the
public was doubtful," was misplaced.
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consistent with the law. See McLean, 205 N.J. at 460; Gonzales v. Hugelmeyer,
441 N.J. Super. 451, 460 (App. Div. 2015). The police officers did not witness
the altercation between plaintiff and Hassan. To allow them to opine as to how
the altercation occurred would be a clear invasion of the jury's factfinding-
province.
IV.
In sum, we reverse the orders granting Lowe's summary-judgment motion
and Hassan's motion for partial summary judgment and the order precluding in
part testimony from plaintiffs' vocational and economic experts. We otherwise
affirm.
Affirmed in part; reversed in part and remanded for proceedings consistent
with this opinion. We do not retain jurisdiction.
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