PATRICIA K. RIEGER VS. ANN, INC., ETC.(L-0557-14, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4172-15T1
PATRICIA K. RIEGER and
ERIC RIEGER,
Plaintiffs-Appellants,
v.
ANN, INC. d/b/a LOFT,
Defendant-Respondent.
________________________________
Argued September 25, 2017 – Decided October 12, 2017
Before Judges Sabatino and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Docket No.
L-0557-14.
Devesh Taskar argued the cause for appellants
(Law Offices of Robert I. Segal, attorneys;
Maria Detitto, on the brief).
Jaunice M. Canning argued the cause for
respondent (Law Offices of William E. Staehle,
attorneys; Ms. Canning, on the brief).
PER CURIAM
Plaintiff Patricia K. Reiger1 appeals from the trial court's
order granting summary judgment to defendant Ann, Inc. d/b/a Loft
in this negligence action. We affirm.
I.
We recite the key facts from the summary judgment record. In
so doing, we view all facts in a light most favorable to plaintiff.
Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014).
On May 15, 2013, plaintiff was shopping at defendant's retail
store in Marlton. While trying on a scarf in the common dressing
area of the store, and backing away from a mirror, plaintiff
tripped and fell over a platform behind her that caused a mannequin
displayed on the platform to strike plaintiff, injuring her
shoulder and elbow.
The store's manager, Marisa Fiorentino, testified at her
deposition that the platform was rectangular, approximately five
inches high, and large enough to hold two mannequins. Fiorentino
drew a diagram depicting the platform and location of the fully-
dressed mannequins, each of which was taller than five feet, five
inches. A clothing bar was located on each side of the platform
display, creating a "store set" from which Fiorentino hung
1
Since Eric Reiger is a co-plaintiff in this case only because of
his per quod claim deriving from his spouse's injury, references
to "plaintiff" pertain solely to Patricia K. Reiger.
2 A-4172-15T1
merchandise that was not readily selling in the store area. A
three-way mirror was located just across from the platform display.
Shelves containing scarves were located on each side of the mirror.
Private dressing rooms were located on the left and right sides
within the common dressing area.
Plaintiff testified at her deposition that she did not notice
the platform display when she entered the dressing area. At some
point thereafter,2 plaintiff tried on a scarf, viewed herself in
the three-way mirror, but did not see the platform display behind
her in the mirror. While observing her image in the mirror,
plaintiff took a step back for a better view. One of her heels
hit the platform, causing one of the mannequins to fall on her.
There were no eyewitnesses.
Defendant retained John S. Posusney, P.E., an engineering
expert who conducted a site inspection. Defendant served plaintiff
with Posusney's report in which he opined "[plaintiff's] incident
was caused by her failure to maintain a proper lookout in the
direction that she was moving before she fell." Posusney found
the aisle accessway between the mirror and the platform exceeded
the requirements of the applicable building code, and plaintiff's
incident was not caused by a defective condition. Plaintiff
2
Plaintiff was not asked how long she was in the dressing area
prior to her fall.
3 A-4172-15T1
retained an engineering expert who conducted a site inspection.
For reasons not disclosed to the court, plaintiff did not produce
in discovery a report by her expert.
The motion judge granted summary judgment to defendant,
concluding plaintiff failed to demonstrate defendant's placement
of the platform display in the dressing area breached a standard
of care that created a dangerous condition. Specifically, the
judge's decision was based on plaintiff's failure to establish,
through expert engineering testimony, that there was insufficient
space between the platform display and the mirror, or through a
"human factors" witness that defendant's positioning of the
platform display created a "trap" such that plaintiff's focus was
on her image in the mirror, and that she would be inclined to back
up and trip over the platform.
Plaintiff now appeals. She contends the court erred in its
decision because she does not claim defendant violated a building
or other code. Rather, plaintiff contends the platform display
constituted a dangerous condition, and a liability expert is not
necessary for a jury to decide whether defendant breached a duty
of care, or that her injuries were a foreseeable result of
defendant's conduct. In this regard, plaintiff emphasizes
Fiorentino's acknowledgment that customers often step back while
viewing themselves in the three-way mirror.
4 A-4172-15T1
We review a grant of summary judgment de novo, observing the
same standard as the trial court. Townsend v. Pierre, 221 N.J.
36, 59 (2015). Summary judgment should be granted only if the
record demonstrates there is "no genuine issue as to any material
fact challenged and that the moving party is entitled to a judgment
or order as a matter of law." R. 4:46-2(c). In determining
whether a summary judgment motion was properly granted, we review
the evidence, drawing "all legitimate inferences from the facts
in favor of the non-moving party." Globe Motor Co. v. Igdalev,
225 N.J. 469, 480 (2016) (citing R. 4:46-2(c)). If no genuine
issue of material fact exists, the inquiry then turns to "whether
the trial court correctly interpreted the law." DepoLink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325,
333 (App. Div. 2013) (citations omitted). We review issues of law
de novo and accord no deference to the trial judge's legal
conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Applying these standards, we discern no reason to reverse the
grant of summary judgment.
The elements of a negligence cause of action are well-settled.
"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,
supra, 221 N.J. at 51 (quoting Polzo v. Cnty of Essex, 196 N.J.
5 A-4172-15T1
569, 584 (2008)). However, "[n]egligence is a fact which must be
shown and which will not be presumed." Long v. Landy, 35 N.J. 44,
54 (1961). "[T]he mere showing of an accident causing the injuries
sued upon is not alone sufficient to authorize an inference of
negligence." Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40
(1951).
Here, the court granted defendant's summary judgment motion
primarily because plaintiff did not present sufficient evidence
to sustain her burden of proving defendant breached a duty of
care. We therefore focus on that element of plaintiff's negligence
claim.
"It is well recognized that the common law imposes a duty of
care on business owners to maintain a safe premises for their
business invitees because the law recognizes that an owner is in
the best position to prevent harm." Stelluti v. Casapenn Enters.,
LLC, 203 N.J. 286, 306 (2010). A proprietor's duty of due care
to a business invitee includes an affirmative duty to inspect the
premises and "requires a business owner to discover and eliminate
dangerous conditions, to maintain the premises in safe condition,
and to avoid creating conditions that would render the premises
unsafe." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563
(2003). "[T]he business entity will not be held liable for injuries
sustained 'so long as [the business] has acted in accordance with
6 A-4172-15T1
the ordinary duty owed to business invitees, including exercise
of care commensurate with the nature of the risk, foreseeability
of injury, and fairness in the circumstances.'" Stelluti, supra,
203 N.J. at 307 (quoting Hojnowski v. Vans Skate Park, 187 N.J.
323, 340-41 (2006)) (alteration in original).
In many instances, a "plaintiff is not required to establish
the applicable standard of care" in a negligence case. Davis,
supra, 219 N.J. at 406 (2014). The plaintiff ordinarily need only
"show what the defendant did and what the circumstances were," and
the jury is competent to supply the applicable standard of care
by "determin[ing] what precautions a reasonably prudent [person]
in the position of the defendant would have taken." Sanzari v.
Rosenfeld, 34 N.J. 128, 134 (1961); see also Davis, supra, 219
N.J. at 406-07. In such non-technical cases, "a layperson's common
knowledge" permits the "jury to find that the duty of care has
been breached without the aid of an expert's opinion." Giantonnio
v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996); see also
Davis, supra, 219 N.J. at 407.
Where, however, a jury lacks the competence to supply the
applicable standard of care, the plaintiff must establish "the
requisite standard" and the defendant's deviation from it by
"present[ing] reliable expert testimony on the subject." Davis,
supra, 219 N.J. at 407 (quoting Giantonnio, supra, 291 N.J. Super.
7 A-4172-15T1
at 42). In determining whether expert testimony is required, "a
court properly considers 'whether the matter to be dealt with is
so esoteric that jurors of common judgment and experience cannot
form a valid judgment as to whether the conduct of the [defendant]
was reasonable.'" Ibid. (quoting Butler v. Acme Mkts., Inc., 89
N.J. 270, 283 (1982) (alteration in original)).
On defendant's motion for summary judgment here, the court
correctly applied these principles and determined plaintiff had
not produced an expert to explain that defendant violated a
standard of care in its placement of the platform display in
proximity to the three-way mirror. We agree. Here, it is
undisputed that defendant's placement of the platform display did
not violate any building code. Indeed, defendant's expert opined
the accessway where plaintiff fell exceeded the municipal code
requirements.
We also find unpersuasive plaintiff's contention that, in
this particular setting, the jury is competent, without expert
testimony, to supply the applicable standard of care based solely
on the testimony in the record. Although Fiorentino testified
that customers generally back up when viewing themselves in a
three-way mirror, we concur with the trial judge that expert
testimony is necessary to establish that placement of the platform
display violated pertinent standards of care to create a tripping
8 A-4172-15T1
hazard. The platform display was not camouflaged nor protruding
into the accessway. Rather, the fully-dressed, life-sized
mannequins were part of a store set, from which customers could
obtain merchandise, in an open area of the common dressing area.
Although plaintiff's act of falling, itself, was not "esoteric,"
the customs and standards for retail store displays and safe
clearance conditions are not part of jurors' common knowledge.
Compare Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (expert
not required to establish dangerous condition of camouflaged
step); Campbell v. Hastings, 348 N.J. Super. 264, 270-71 (App.
Div. 2002) (expert not required to establish danger of unlit sunken
foyer); Berger v. Shapiro, 30 N.J. 89, 101-02 (1959) (expert not
required to explain dangerous condition caused by missing brick
in top step of porch).
Even affording plaintiff, as we must, all reasonable
inferences from the factual record, there is an insufficient
evidential basis here to conclude that defendant acted
unreasonably in its placement of the platform, without the aid of
expert testimony, to establish that an accepted standard of care
was violated.
Having determined that defendant did not owe plaintiff a duty
of care, we need not reach plaintiff's argument that defendant is
liable pursuant to a distracted invitee theory. Model Jury Charge
9 A-4172-15T1
(Civil), 5.20F(12)(c), "Duty Owed - Condition of Premises,
Distraction or Forgetfulness of Invitee" (2017). We agree with
the trial court that the distraction of invitee jury charge is
available only if the jury first determines "defendant was
negligent in permitting the condition to exist." Id. As we have
explained above, however, in the absence of expert testimony
articulating a standard of care, the jury cannot make that
determination here.3
Affirmed.
3
Nor are we persuaded that defendant was liable under the mode-
of-operation doctrine inasmuch as notice is not at issue in this
case, Wollerman v. Grand Union Stores, 47 N.J. 426, 429-30 (1966),
and plaintiff took the scarf from one of the shelving bins next
to the three-way mirror, not off of the mannequin that fell on
her, Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 260
(2015). There is an insufficient nexus between plaintiff's self-
service removal of the scarf from the bin and her subsequent act
of bumping into the platform display. See Arroyo v. Durling
Realty, LLC, 433 N.J. Super. 238, 248 (App. Div. 2013) (regarding
lack of the required nexus).
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