Pierre Leon v. Tool & Truck Rental at the Home Depot ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3032-21
PIERRE LEON,
Plaintiff-Appellant,
v.
TOOL & TRUCK RENTAL
AT THE HOME DEPOT,
Defendant-Respondent.
____________________________
Submitted November 29, 2023 – Decided July 23, 2024
Before Judges Vernoia and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-3338-19.
Paul Fernandez & Associates, PC, attorneys for
appellant (Paul E. Fernandez, on the brief).
Marshall, Dennehey, Warner, Coleman & Goggin,
attorneys for respondent (Kevin E. Hexstall, Walter F.
Kawalec, III, and Alicia L. Calaf, on the brief).
PER CURIAM
This action arises out of plaintiff Pierre Leon's claim he was injured when
he fell from a ramp that he had rented with a truck he also had rented from
defendant Tool & Truck Rental at the Home Depot.1 Plaintiff appeals from
orders vacating a default judgment he had obtained against defendant and
granting defendant's motion for a directed verdict at trial. We affirm.
I.
In October 2019, plaintiff filed a complaint alleging that on September 22,
2018, he had rented from defendant a flatbed truck with a "Load N Go Ramp
2012" and suffered personal injuries when he slipped and fell "about
four[-]and[-]a[-]half feet off . . . the ramp." The complaint contained two causes
of action: a design-defect claim and a separate negligence claim that defendant
had failed to properly "supervise," "maintain," and "inspect" the ramp and
otherwise failed to "exercise the degree of care required" for the ramp.
On October 29, 2019, plaintiff served the complaint and summons on an
assistant store manager at defendant's Clifton, New Jersey store. On February
1
In a certification submitted to the motion court, a senior legal specialist
employed by Home Depot asserted that "'Tool and Truck Rental at the Home
Depot' is not a Home Depot entity." Counsel for defendant otherwise identifies
Home Depot U.S.A., Inc. as the proper defendant and states it has been
"incorrectly identified as Tool & Truck Rental at the Home Depot" in this
matter.
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4, 2020, after no responsive pleading to the complaint had been filed, plaintiff
submitted a request to the court for entry of default against defendant. The
record on appeal does not establish the date the court entered default, but it is
undisputed default was entered.
In a February 10, 2020 letter from his counsel to defendant's Clifton store,
plaintiff advised that a proof hearing had been scheduled for March 13, 2020.
In a May 22, 2020 letter from his counsel to the Clifton store, plaintiff provided
notice of a proof hearing that had been scheduled for June 19, 2020. No other
notices concerning the scheduling of the proof hearing are included in the record
on appeal.
The record on appeal includes an August 21, 2020 order for judgment in
the amount of $45,954.90 plus court costs entered by the court against
defendant. The order states that plaintiff had "given proofs to the [c]ourt" in
support of the judgment, but the record on appeal does not include a transcript
of the proceeding at which the proofs were presented.
In February 2021, defendant moved to vacate default judgment.
Defendant supported the motion with a certification from its counsel noting
plaintiff's request for default had been accompanied by a certification of service
of the complaint stating the complaint had been served on an assistant manager
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at defendant's Clifton store. Defendant's counsel further stated the complaint
had not been properly served on defendant's New Jersey registered agent and
defendant had not received notice of the complaint until plaintiff attempted to
execute the August 21, 2020 judgment against "Home Depot" in November
2020. Counsel asserted defendant had never been properly served with the
complaint and was, therefore, entitled to vacatur of the judgment under Rule
4:50-1.
Defendant's motion was also supported by the certification of a legal
specialist employed by defendant, who represented that the assistant store
manager allegedly served with the complaint "is not an officer, director, trustee,
managing or general agent" of defendant. The legal specialist further identified
defendant's New Jersey registered agent and asserted that under Rule 4:4-4
plaintiff had to serve the registered agent with the complaint. The legal
specialist also explained that the judgment had been entered against "Tool and
Truck Rental at the Home Depot," which is a "non[-]Home Depot entity."
Plaintiff opposed the motion, asserting defendant had notice of the
complaint because his counsel had sent a letter of representation to the Clifton
store on October 1, 2018, and the complaint had been personally served on the
assistant store manager on October 19, 2019, and November 6, 2019. Plaintiff
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further contended his counsel had sent letters to the store with notice of the proof
hearings that had been scheduled for March 13, 2020, and June 19, 2020, and
that the August 21, 2020 default judgment had been faxed to defendant on
December 17, 2020. Plaintiff's counsel also stated that he had spoken to
defendant's representatives about the judgment in December 2020. In addition,
plaintiff's counsel argued defendant's motion should be denied because
defendant had failed to establish excusable neglect or a meritorious defense to
the allegations in the complaint.
On April 1, 2021, the court issued an order granting defendant's motion to
vacate default judgment. In its written statement of reasons, the court found the
judgment was void for improper service, explaining that under Rule 4:4-4(a)(6)
plaintiff was required to have first attempted service on defendant's general
agent, or other authorized persons, before effectuating service on a person in
charge of defendant's principal place of business. The court also found the
default judgment had been improperly entered in the first instance because
plaintiff had never filed a motion for default judgment as required by Rule 4:43-
2.
Defendant filed an answer to the complaint and the matter later proceeded
to trial before a jury. Plaintiff testified, explaining the manner in which the
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accident occurred and the injuries he allegedly sustained. Because plaintiff 's
appeal involves only issues related to the occurrence of the accident, we limit
our summary of plaintiff's testimony to that subject.
In pertinent part, plaintiff testified that on September 22, 2018, he went to
defendant's Clifton store to rent a truck to transport a small cabinet from the
place he had purchased the cabinet to his home. He spoke with an individual at
the store—who plaintiff recalled was named Arvander—and explained he
needed a truck with a ramp. Arvander wore a Home Depot uniform and worked
in the tool department. After looking at various trucks at defendant's store with
Arvander, and noting the trucks had ramps "missing" from them, plaintiff
returned to the store with Arvander, who provided plaintiff with a "pair" of
"load-and-go ramps." Plaintiff testified the ramps were folded and required
unfolding to function as ramps for the truck. Plaintiff testified Arvander
instructed him to put the ramps on the back of the truck "diagonally." Plaintiff
rented the truck and ramps from defendant.
Plaintiff testified he first drove the truck to the place he had purchased the
cabinet. An individual there "picked up" the cabinet and placed it in the back
of the truck. Plaintiff then drove to his home where he parked the truck and
opened up its back.
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As described by plaintiff, he unfolded the ramps and placed them "on top
of the truck diagonally," by putting one end of each ramp on the truck and the
other on the ground. Plaintiff then tested the stability of each ramp by walking
up them. During his direct testimony, plaintiff stated that as he went "back
down" the left ramp, it "slipped from underneath him," causing his left leg to hit
the ground and him to fall backwards. On cross-examination, he testified he
was injured because the left ramp had slipped and "started to move."
After spending some time on the ground, plaintiff got up and slid the
cabinet off the truck and onto a dolly. He rolled the cabinet into his apartment.
Plaintiff then returned to the truck, placed the ramps in it, and drove to
defendant's Clifton store.
During his direct testimony, plaintiff testified that when he returned to the
store, he told Arvander "what [had] happened" as he was "checking out." On
cross-examination, plaintiff testified he had erred and that Arvander was not
present at the store when he returned the truck and ramps.
Plaintiff explained that when he returned to the store, he spoke with a
Home Depot employee whose named he believed to be "Chris," who wore a
name tag stating, "training supervisor" or "supervisor/trainer." Plaintiff testified
he told Chris what had "happened": he had fallen "off the truck—off the ramps"
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and he had "slipped off the ramp that was connected to the truck." According
to plaintiff, Chris then told him "the ramps [were] not for the truck" and "that's
actually pretty dangerous." When asked what had caused him to fall, plaintiff
responded that the ramps were not appropriate for the truck because they were
not "meant for" the truck.
The remainder of plaintiff's testimony concerned his claimed efforts to
report the incident to others at the store, his alleged injuries, and his treatment
for them. Following the completion of his testimony, plaintiff rested his case.
Defendant then moved for a directed verdict on the design-defect and
negligence claims asserted in the complaint. The court granted the motion,
finding plaintiff had failed to present any evidence establishing that either the
ramps or the truck had been defectively designed. Plaintiff does not challenge
the dismissal of the design-defect claim on appeal and, therefore, has abandoned
any claim the court erred by granting defendant's motion for a directed verdict
on that claim. See Drinker Biddle & Reath LLP v. N.J. Dep't of L. & Pub.
Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (explaining an issue or
claim not addressed in a party's merits brief on appeal is deemed abandoned) .
Defendant also moved for a directed verdict on plaintiff's remaining
negligence claim, noting in the complaint plaintiff alleged defendant had
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negligently inspected, maintained, and cared for the truck and ramps but that
plaintiff had not presented any evidence, including any expert testimony,
establishing the standard for inspecting, maintaining, or caring for the truck and
ramps. Defendant argued plaintiff's testimony the ramp had slipped or slid does
not, by itself, establish defendant's alleged negligence in maintaining,
inspecting, or caring for the truck and ramps. Defendant also asserted the record
lacked any evidence that its alleged negligence proximately caused the ramp to
slip or slide and plaintiff required expert testimony to establish defendant had
breached a duty of reasonable care resulting in the slip or slide of the ramp that
he claimed caused his fall and injuries.
Before the trial court, plaintiff's counsel defined the negligence claim as
one founded on defendant's alleged failure "to properly inspect the equipment,
the degree necessary for the care under the circumstances which
caused . . . plaintiff . . . to fall." When asked what defendant had done
negligently, plaintiff's counsel claimed defendant had given plaintiff "the wrong
ramp[s]" and Chris had admitted plaintiff had been given the wrong ramps.
Plaintiff's counsel argued that evidence alone was sufficient to sustain his
negligence claim. Plaintiff did not argue before the trial court that the doctrine
of res ipsa loquitur separately supported the claim.
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The court rejected plaintiff's arguments, noting in the complaint plaintiff
alleged defendant had negligently maintained, serviced, inspected, and
exercised the degree of care required under the circumstances. The court
reasoned plaintiff had failed to present any evidence establishing the standard
of care for the maintenance, service, inspection, and care of the ramps such that
plaintiff carried his burden of proving defendant breached a reasonable duty of
care as required for his negligence claim. In short, the court found plaintiff
failed to present any evidence establishing "what the requirements are and what
[defendant] did incorrectly." The court also rejected plaintiff's claim he had
established defendant's negligence based on his contention this was "a clear case
of the wrong ramp on the wrong truck," finding that determining whether the
ramps were incorrect for the truck was beyond the ken of the average juror and
therefore required expert testimony plaintiff had failed to present.
The court granted defendant's motion for a directed verdict, dismissed the
jury, and entered a memorializing order. Plaintiff appealed.
II.
Plaintiff first argues the court erred by granting defendant's motion to
vacate the default judgment. He claims the motion should have been denied
because the motion was unaccompanied by a showing of a meritorious defense
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to the complaint as required under Rule 4:50-1, see generally U.S. Bank Nat'l
Ass'n v. Guillaume, 209 N.J. 449, 468-69 (2012), and untethered to an answer
to the complaint as required under Rule 4:43-3.
We review a court's order granting or denying a motion to vacate a default
judgment under Rule 4:50-1 for an abuse of discretion. BV001 REO Blocker,
LLC v. 53 W. Somerset St. Props., LLC, 467 N.J. Super. 117, 124 (App. Div.
2021). "The trial court's determination under [Rule 4:50-1] warrants substantial
deference, and should not be reversed unless it results in a clear abuse of
discretion." Guillaume, 209 N.J. at 467. A court abuses its discretion when its
"decision 'is made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" Id. at 467-68(quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
"Our procedural rules were designed to be 'a means to the end of obtaining
just and expeditious determinations between the parties on the ultimate
merits[.]'" Midland Funding LLC v. Albern, 433 N.J. Super. 494, 499 (App.
Div. 2013) (quoting Ragusa v. Lau, 119 N.J. 276, 284 (1990)). Based on the
preference to adjudicate cases on the merits, courts shall "view 'the opening of
default judgments . . . with great liberality,' and should tolerate 'every
reasonable ground for indulgence . . . to the end that a just result is reached.'"
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Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330,
334 (1993) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App.
Div.), aff'd, 43 N.J. 508 (1964)). "All doubts . . . should be resolved in favor of
the parties seeking relief," ibid., and "trial courts should treat a motion to vacate
more liberally where there is 'doubt about [a party's] actual receipt of the
process[,]'" BV001 REO Blocker, 467 N.J. Super. at 126 (quoting Davis v.
DND/Fidoreo, Inc., 317 N.J. Super. 92, 100 (App. Div. 1998)).
Measured against these standards, we discern no abuse of discretion in the
court's granting of defendant's motion to vacate the default judgment. We reject
plaintiff's reliance on any claimed deficiency in defendant's motion under Rule
4:43-3 because the Rule applies to a motion to vacate default and defendant
moved to vacate the default judgment under Rule 4:50-1, not Rule 4:43-3.
Moreover, as expressly provided in Rule 4:43-3, a court may set aside a default
under Rule 4:50-1 where a "judgment by default has been entered." And that is
precisely what the court did here.
Indeed, plaintiff argues the court erred by granting defendant's motion
under Rule 4:50-1 because defendant did not make a showing of a meritorious
defense. Although a showing of a meritorious defense is generally required to
obtain relief from a final judgment under Rule 4:50-1, Guillaume, 209 N.J. at
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469, such a requirement violates a defendant's due process rights where the
default judgment is void because the defendant was not properly served with the
complaint, see Peralta v. Heights Med. Ctr, Inc., 485 U.S. 80, 85-87 (1998);
M&D Assocs. v. Mandara, 366 N.J. Super. 341, 353-55 (App. Div. 2004)
(explaining a showing of a meritorious defense is not required to vacate a
judgment under Rule 4:50-1 where the judgment is void because of defective
service of process).
The motion court found the default judgment was void because plaintiff
had failed to properly serve defendant with the complaint. See, e.g., Jameson v.
Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003)
(explaining "[w]hen 'a default judgment is taken in the face of defective personal
service, the judgment is [generally] void'" (quoting Rosa v. Araujo, 260 N.J.
Super. 458, 462 (App. Div. 1992))). Plaintiff does not argue the court erred by
finding he had failed to properly serve defendant, see Drinker Biddle & Reath
LLP, 421 N.J. Super. at 496 n.5; see also R. 4:4-4(a)(6) (providing the manner
of service of a complaint on a corporation), and we therefore discern no basis to
disturb the court's finding the judgment was void due to a lack of proper service,
M&D, 366 N.J. Super. at 353-55; Jameson, 363 N.J. Super. at 425. Thus,
contrary to plaintiff's claim, defendant was not required to demonstrate a
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meritorious defense to obtain vacatur of the void default judgment under Rule
4:50-1(d), Midland Funding LLC, 433 N.J. at 501, and the court did not abuse
its discretion by granting defendant's motion to vacate the August 21, 2020
judgment.
Plaintiff also argues the court erred by granting defendant's motion for a
directed verdict. He claims that contrary to the court's determination, his
"simple negligence" claim against defendant did not require expert testimony
establishing the standard of care he claims defendant violated and that Chris's
admission plaintiff had been provided the wrong ramps for the truck was
sufficient to sustain his negligence claim. For the first time on appeal, plaintiff
also argues he did not require expert testimony to support his negligence claim
because the claim was otherwise supported under the res ipsa loquitur doctrine.2
2
We do not consider or decide plaintiff's argument that his negligence claim
finds sustenance under the res ipsa loquitur doctrine. See generally Jerista v
Murray, 185 N.J. 175, 191-93 (2005) (explaining the elements and application
of the res ipsa loquitur doctrine). Plaintiff did not raise the issue of the purported
application of the doctrine before the trial court and, as our Supreme Court has
explained, reviewing courts "'will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such presentation
is available unless the questions so raised on appeal go to the jurisdiction for the
trial court or concern matters of great public interest.'" Selective Ins. Co. of
Am. v. Rothman, 208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins.
Co., 62 N.J. 229, 234 (1973)).
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We review motions under Rule 4:37-2(b) for an involuntary dismissal and
for judgment under Rule 4:40-1 following the presentation of the plaintiff's case
applying the same standard as the trial court. Smith v. Millville Rescue Squad,
225 N.J. 373, 397 (2016). The motions are measured against the identical
"'evidential standard: "if, accepting as true all the evidence which supports the
position of the party defending against the motion and according him the benefit
of all reasonable inferences which can reasonably and legitimately be deduced
therefrom, reasonable minds could differ, the motion must be denied[.]"'" Ibid.(alteration in original) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).
Such "motion[s] should only 'be granted where no rational juror could conclude
that the plaintiff marshaled sufficient evidence to satisfy each prima facie
element of a cause of action.'" Ibid. (quoting Godrey v. Princeton Theological
Seminary, 196 N.J. 178, 197 (2008)).
"To sustain a cause of action for negligence, a plaintiff must establish four
elements: "'(1) a duty of care, (2) a breach of that duty, (3) proximate cause,
and (4) actual damages.'"" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting
Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)). The plaintiff has the burden
of presenting competent proof establishing each of the elements by a
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preponderance of the evidence. Ibid.; see also Davis v. Brickman Landscaping,
Ltd., 219 N.J. 395, 406 (2014).
Plaintiff argues the trial court erred by finding he was required to present
expert testimony to establish the standard of care owed by defendant. He asserts
that a plaintiff is not always required to present expert testimony to establish the
duty of care by a putative negligent tortfeasor, see Maison v. N.J. Transit Corp.,
460 N.J. Super. 222, 231 (App. Div. 2019), and the court erroneously dismissed
his negligence claim based on his lack of a liability expert at trial. He contends
the jury's common knowledge allowed it to properly decide whether defendant
breached a duty of care without the need for expert testimony, and the court
erred by concluding otherwise.
A plaintiff is not required to present evidence establishing the standard of
care in most negligence cases. Davis, 219 N.J. at 406 (citing Sanzari v.
Rosenfeld, 34 N.J. 128, 134 (1961)). Generally, "'[i]t is sufficient for [the]
plaintiff to show what the defendant did and what the circumstances were. The
applicable standard of conduct is then supplied by the jury[,] which is competent
to determine what precautions a reasonably prudent man in the position of the
defendant would have taken.'" Id. at 406-07 (alterations in original) (quoting
Sanzari, 34 N.J. at 134). "Such cases involve facts about which 'a layperson's
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common knowledge is sufficient to permit a jury to find that the duty of care has
been breached without the aid of an expert's opinion.'" Id. at 407 (quoting
Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)).
However, where "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," ibid. (alteration in original)
(quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)), a "jury 'would
have to speculate without the aid of expert testimony[,]'" ibid. (quoting Torres
v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001)). Thus, in those
circumstances where "the 'jury is not competent to supply the standard by which
to measure the defendant's conduct,'" the plaintiff is required to "'establish the
requisite standard of care and [the defendant's] deviation from that standard' by
'present[ing] reliable expert testimony on the subject.'" Ibid. (alterations in
original) (citations omitted); see also N.J.R.E. 702.
Plaintiff argues his negligence claim did not require expert testimony
because "[i]t is common knowledge that a business owner should ensure that
equipment being rented to customers is proper and fitting for its intended
purpose—and that parts and pieces fit together." He similarly claims it is
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common knowledge that it is negligent to rent ramps to a customer for a truck
"that does not actually fit or go with it."
Plaintiff's arguments ignore the context within which the court made its
determination that plaintiff was required to present expert testimony to establish
the standard of care applicable to his negligence claim. In deciding defendant's
motion for a directed verdict, the court considered the specific bases for the
negligence claim alleged in the complaint. As addressed in detail during the
colloquy on defendant's motion, plaintiff alleged in the complaint defendant
negligently maintained, serviced, inspected, and cared for the ramps and truck.
And, it was based on those claims the trial court determined expert testimony
was required to establish the appropriate standard of care for the ramps and truck
based on its determination it was beyond the common knowledge of a jury to
discern requirements for the maintenance, inspection, service, and care for the
ramps and truck. See State v. Cotto, 471 N.J. Super. 489, 529 (App. Div. 2022)
(explaining the trial court must "'act as a gatekeeper'" to determine whether
expert testimony is needed, such as for an "'area where the average person could
not be expected to have sufficient knowledge'" (first quoting State v. Covil, 240
N.J. 448 (2020); then quoting State v. Doriguzzi, 334 N.J. Super. 530, 538 (App.
Div. 2000))).
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The record includes no evidence concerning the ramps or truck such that
a juror could determine, with or without expert testimony, whether the ramps or
truck had been properly maintained, serviced, inspected, or cared for. We
therefore find no error or abuse of discretion in the court's determination because
based on the allegations in the complaint, the sparse evidence presented at trial
did not permit a jury relying on its common knowledge to determine defendant
had negligently maintained, serviced, inspected, or cared for the ramps or truck.
The court correctly concluded plaintiff had to present expert testimony to
establish the standard of care for the bases of his negligence claim alleged in the
complaint.3
In apparent recognition of the lack of evidence in the trial record, plaintiff
does not argue the court erred by granting defendant's motion for a directed
verdict on his claims defendant had negligently inspected, serviced, maintained,
or cared for the ramps and truck. He also does not argue the court erred by
finding he had to present expert testimony to establish the standards for
3
We do not suggest expert testimony is required in every case a plaintiff alleges
an item of equipment has been negligently maintained, serviced, inspected, or
cared for. However, the trial court correctly made its determination based on
the bases for plaintiff's negligence claim alleged in the complaint because
plaintiff had otherwise presented no evidence permitting a determination that
there were maintenance, service, inspection, or care issues such that a jury
exercising its common knowledge could properly find defendant was negligent.
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maintaining, servicing, inspecting, and caring for the ramps and truck. See
Drinker Biddle & Reath LLP, 421 N.J. Super. at 496 n.5.
Instead, plaintiff argues only that he presented sufficient proof of
negligence to sustain his claim because the evidence established he had been
given the wrong ramps. In support of the contention, he asserts, without pointing
to any evidence, that the "parts and pieces" of the ramps and truck did not "fit
together" and that the ramps did not "actually fit" with the truck.
To establish a prima-facie claim, plaintiff was required to establish
defendant's alleged negligence in providing the wrong ramps proximately
caused his fall and injuries. Townsend, 221 N.J. at 51. "Proximate cause
consists of "'any cause which in the natural and continuous sequence, unbroken
by an efficient intervening cause, produces the result complaint of and without
which the result would not have occurred.'"" Ibid. (quoting Conklin v. Hannoch
Weisman, 145 N.J. 395, 418 (1996)); see also New Gold Equities Corp. v. Jaffe
Spindler Co., 453 N.J. Super. 358, 379 (App. Div. 2018) (explaining probable
cause "'requires an initial determination of cause-in-fact' . . . [which] 'requires
proof that the result complained of probably would not have occurred "but for"
the negligent conduct of the defendant'" (first quoting Francis v. United Jersey
Bank, 87 N.J. 15, 39 (1981); then quoting Conklin, 145 N.J. at 417)).
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Even accepting, as we must, see Smith, 225 N.J. at 397, that the ramps
were wrong for the truck—which is all that plaintiff reported Chris had said—
plaintiff did not present any evidence establishing that whatever was wrong
about the ramps proximately caused them to slip or slide such that plaintiff fell.
In the absence of such evidence, plaintiff failed to establish an essential element
of his negligence claim—that defendant's alleged negligence in providing the
wrong ramps proximately caused plaintiff's fall and claimed injuries. That
failure alone supports the court's grant of defendant's motion for a directed
verdict. See Davidson v. Slater, 189 N.J. 166, 185 (2007) (explaining that where
causation "remains one of pure speculation or conjecture, or the probabilities
are at best evenly balanced, it becomes the duty of the court to direct a verdict
for the defendant").
The only evidence presented concerning the cause of plaintiff's fall was
his testimony, and it is limited and inadequate to sustain his burden of proving
causation. Plaintiff testified he fell when the ramp slipped or slid. He did not
offer testimony about the manner in which he had installed the ramps, other than
his vague description that he had installed them on the truck diagonally. He did
not testify about the physical characteristics of the ramps, the manner in which
the left ramp slipped or slid, or what had caused it to do so such that he fell onto
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the ground and became injured. The trial record otherwise includes no evidence
the left ramp did not fit the truck, the pieces of the ramps did not fit together or
with the truck, or that the slip or slide of the left ramp was caused by its
purported incompatibility with the truck. Indeed, during his testimony, plaintiff
did not identify any physical cause for the slip or slide of the ramp that caused
him to fall, and he did not attribute his fall to any incompatibility between the
ramps and the truck or anything else.
The dearth of evidence establishing the manner and cause of the slip or
slide of the ramp rendered it impossible for the jury to make a reasoned
determination as to whether defendant's purported negligence proximately
caused plaintiff's fall and injuries. Thus, the record lacks any evidence
establishing the cause of the ramp's slip or slide or from which the jury could
determine, even by using its collective common knowledge, whether defendant's
purported negligence proximately caused the singular condition—the ramps to
slip or slide—he claims caused his fall.
The mere fact that the ramp may have slipped or slid and caused plaintiff
to fall does not establish defendant's alleged negligence. See Myrlak v. Port
Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999) (quoting Meny v. Carlson, 6 N.J.
82, 91 (1950)) ("Ordinarily, negligence is . . . 'a fact which must be proved and
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which will never be presumed[.]'"). Plaintiff was required to present evidence
establishing both defendant's alleged negligence and that defendant's negligence
proximately caused plaintiff's fall, see Townsend, 221 N.J. at 60-61, and he did
not present evidence, and does not cite to any evidence in his brief on appeal,
that establishes both elements.
Plaintiff's limited testimony about the statement he attributes to Chris at
defendant's store does not carry the day. Plaintiff attempts to make too much
out of too little. Plaintiff did not testify he told Chris that the ramp had slipped
or slid and that had caused his fall. According to plaintiff's testimony, he told
Chris he fell "off the truck—off the ramps," he "fell off the truck," he "slipped
off the ramp that was connected to the truck," and, also vaguely, "that's what
[plaintiff] remembered from the ramp slipped." Plaintiff further testified that it
was in response to those statements that Chris said the ramps he had been
provided were wrong for the truck.
What is missing from plaintiff's proofs is any evidence that because the
ramps were wrong for the truck, the left ramp later slipped or slid thereby
proximately causing plaintiff's fall. Without any evidence demonstrating the
reason for the ramp's slip or slide, plaintiff could not, and did not, prove that
defendant's alleged negligence in purportedly providing the wrong ramps
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proximately caused defendant's fall and injuries. The court therefore correctly
determined plaintiff did not sustain his burden of proving each of the essential
elements of his negligence claim and granted defendant's motion for a directed
verdict. Davidson, 189 N.J. at 185.
To the extent we have not otherwise addressed any of plaintiff's
arguments, we have considered them and find they are without sufficient merit
to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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