LOUISE HOCKMAN VS. BURRELLYS LIMITED LIABILITY COMPANY (L-0365-14, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3731-15T2
LOUISE HOCKMAN,
Plaintiff-Respondent,
v.
BURRELLYS LIMITED
LIABILITY COMPANY, and
NICOLE BURRELL,
Defendants-Appellants,
and
CAREN FREDERICK,
Defendant-Respondent.
__________________________________
Argued September 12, 2017 – Decided October 2, 2017
Before Judges Yannotti, Carroll, and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
0365-14.
Tracy L. Frankel argued the cause for
appellants (Farber Brocks & Zane, LLP,
attorneys; Ms. Frankel, on the briefs).
Michael S. Savett argued the cause for
respondent Caren Frederick (Clark & Fox,
attorneys; John M. Clark, on the brief).
Nicholas J. Leonardis argued the cause for
respondent Louise Hockman (Stathis &
Leonardis, LLC, attorneys; Mr. Leonardis and
Randi S. Greenberg, on the brief).
PER CURIAM
Plaintiff Louise Hockman entered a sandwich shop owned and
operated by Nicole Burrell and Burrellys, LLC (collectively
Burrellys). Upon noticing her vehicle was improperly parked she
began to exit the store and allegedly slipped on an unknown liquid,
fell, and severely injured her right leg. A jury trial ensued and
Burrellys was determined eighty-percent liable for plaintiff's
injuries and plaintiff twenty-percent. The jury awarded plaintiff
$1,280,081.67.
Burrellys appeals from the November 20, 2015 denial of summary
judgment; the September 18, 2015 entry of summary judgment in
favor of the landlord, Caren Frederick; the denial of in limine
motions to bar the testimony of plaintiff's liability expert and
certain medical expert testimony and evidence; evidentiary rulings
made during trial; and an order denying a motion for
reconsideration, a new trial and remittitur. We hold the trial
court erred by permitting plaintiff's liability expert to testify
in a speculative manner as to the source of the liquid plaintiff
slipped on, causing the capacity for an unjust result. For these
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reasons, we affirm in part, reverse in part and remand for a new
trial.
I.
Prior to trial, the court addressed summary judgment motions
by Frederick and Burrellys. On September 18, 2015, the trial
court granted summary judgment in favor of Frederick. On November
20, 2015, the court denied Burrellys's motion for summary judgment,
finding a sufficient material factual dispute regarding the
proximate cause of plaintiff's fall to permit the matter to be
addressed by the jury.
The matter was later tried before a jury. Burrellys addressed
several in limine motions to the trial judge, one of which sought
to exclude the testimony of plaintiff's liability expert Dr. Wayne
Nolte on the grounds of a net opinion. Specifically, Burrellys
challenged Nolte's opinion on the basis he could not opine as to
the source of the liquid plaintiff slipped on. The trial judge
denied the application to bar Nolte's testimony and report, but
restricted Nolte from speculating as to the source of the liquid.
At trial, however, Nolte testified beyond the scope established
in the in limine ruling.
Burrellys also moved in limine to bar medical illustrations
utilized by plaintiff's medical expert, Surender M. Grover, M.D.,
at a de bene esse deposition because the illustrations were
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allegedly exaggerated and thus prejudicial. The trial judge denied
the motion finding that the illustrations were not prejudicial,
but instead an aid to the doctor's testimony.
In addition, Burrellys moved in limine to bar Dr. Grover's
testimony regarding plaintiff's poor future prognosis as
speculative and not within the scope of Dr. Grover's report. The
trial judge denied the motion because Dr. Grover had opined in his
report regarding plaintiff's prognosis and the testimony was not
speculative.
Burrellys also moved to admit statements attributed to
plaintiff in the hospital discharge summary pursuant to N.J.R.E.
803(c)(4). According to the hospital's records, plaintiff
reported that she felt dizzy before the fall. The trial judge
declined to address the motion, noting it was premature because
plaintiff had yet to testify.
II.
The following facts are taken from the trial testimony.
Plaintiff visited Tastee Sub, owned and operated by Burrellys, to
purchase a sandwich. She went up two to three steps and approached
the counter to place her order. After ordering, plaintiff informed
Burrell she was going to make sure her car was parked legally.
Before taking her first step down or reaching the banister,
plaintiff's "feet flew up in the air to where [she] could see
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them." When plaintiff landed, her ankle hurt causing her to reach
for it, at which point she noticed "the very bottom of [her] jeans
. . . [was] wet."
Plaintiff did not see any liquid in the area where she fell,
but she did not have any wetness on her jeans when she entered the
shop. It was undisputed it had not rained or snowed the day of
the incident. Plaintiff's ankle was not bleeding and the only
other liquid present was blood from an injury to the back of her
head as a result of the fall.
Plaintiff was hospitalized and had surgery as a result of her
ankle injury. After the surgery, plaintiff wore a medical walking
boot for several months, attended rehabilitation for over two
months, and began physical therapy. Plaintiff used a walker for
ten months, including when she returned home; required the aid of
a visiting nurse; and had ongoing physical therapy.
Plaintiff testified she still has pain in her ankle, and
experiences swelling when she walks. She stated she is unable to
take walks, go shopping, or perform chores as she did before the
incident. Plaintiff could not drive for two years and when she
resumed driving, could not do so for long distances.
Dr. Grover treated plaintiff at the hospital after her fall
and testified on her behalf. He testified regarding plaintiff's
injury and summarized her ankle fracture as "[p]retty severe."
5 A-3731-15T2
Likewise, Dr. Grover described in detail the surgery he performed.
He said the surgery was required if plaintiff "ever wanted to
walk" and explained it required the placement of hardware into the
bone. He described the surgery as successful.
Dr. Grover testified he continued to care for plaintiff and
discussed her post-operation therapy regimen. He also explained
plaintiff advised she was continuing to experience pain, which
lasted more than a year, for which he recommended another surgery
to remove the hardware in plaintiff's ankle. In addition, Dr.
Grover recommended further surgery because plaintiff's injury was
not healing properly and opined plaintiff's pain would "get worse
and worse in time, where the arthritis will progress and make her
more and more stiff[] and painful." Dr. Grover testified it was
"a bad prognosis." He concluded plaintiff's injury was permanent.
Dr. Andrew Hutter, an orthopedic surgeon, provided expert
testimony for Burrellys. He examined plaintiff in 2015 and
concluded she was "treated appropriately postoperatively" and
there "[d]id not appear [to be] anything unusual in her
postoperative course." Dr. Hutter agreed plaintiff sustained a
fracture dislocation of her right ankle as a result of the February
26, 2012 incident and found she underwent the appropriate treatment
for her injury. He concluded plaintiff reached the maximum medical
improvement for her ankle, but conceded there "was a moderate
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degree of orthopedic permanency to the right ankle," and it was
possible the pain could get better or worse.
Dr. Nolte, a civil and mechanical engineer, testified as
plaintiff's liability expert. He stated the shop's flooring was
a vinyl composition tile, and opined that it was "an acceptable
floor, good floor." He explained "[t]he type of slip [plaintiff]
experienced is [called] a hydroplane. She was no longer walking
on the . . . tile surface, she was now walking on the liquid that
was free to move over the tile surface, because the tile surface
cannot absorb any liquid."
Nolte opined the operator of the shop has an obligation under
the Uniform Fire Code in New Jersey to keep the means of egress
"in a safe condition at all times," requiring inspection,
maintenance, and warnings when necessary. He found no maintenance
or inspection records. He further stated:
Again, here [is] a sub shop. You have
sandwiches, you have vinegar, you have oil,
you have liquids, soda, water, whatever.
There's a probability of . . . liquid getting
on the floor. So, what do you do to prevent
that, to keep that means of egress in a safe
condition? And here, you know, your standard
procedure is you do inspections, do
maintenance, you put a mat down, you put a
warning sign down. None of that was [done]
here.
He concluded:
7 A-3731-15T2
there was a hazardous condition created, and
that was the lack of safety at the means of
egress. [The store d]idn't employ
maintenance, didn't employ inspection, did not
have a mat, did not have any signs, and yet
it's an area where there's a probability of
liquid being on the floor from the type of
operation that's there.
Burrell testified she was the only employee present at the
time of the incident. She explained when customers entered the
shop, they would order food "[t]o go"; there was no dining area
or place to eat in the shop. She testified the last customer to
enter the shop before plaintiff departed over one-half hour
earlier. Burrell saw plaintiff enter the shop and did not notice
anything on the floor. Burrell did not see plaintiff fall, but
attended to her immediately afterwards and noticed blood coming
from the back of plaintiff's head, prompting her to call 9-1-1 and
place a clean towel under her head. Burrell did not notice any
liquid on the floor.
Burrell testified the shop had a refrigerator containing side
salads, canned soda, and two liter bottles of soda. She stated
that she did not keep maintenance records or records of daily
inspections. She had no recollection of whether she swept the
floor the day of the incident, but if she did not "it would be
because there was not[h]ing on the floor," since she routinely
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inspected it. Burrell explained if she had seen something on the
floor, she would have cleaned it up immediately.
III.
Following summations, the trial judge instructed the jury,
specifically charging both actual or constructive notice and the
mode-of-operation theories of liability. The jury verdict sheet
required the jury to answer several interrogatories; namely, on
liability whether Burrellys was negligent, and whether Burrellys's
negligence was a proximate cause of plaintiff's accident. The
jury was also asked whether plaintiff was negligent and whether
her negligence was a proximate cause of the accident. The jury
responded in the affirmative to both questions and was then
required to assign to the parties percentages of responsibility
for plaintiff's fall and injuries. The jury found Burrellys
eighty-percent and plaintiff twenty-percent liable. The jury
awarded plaintiff damages of $1,200,000 for pain and suffering and
all of her medical expenses resulting from the incident totaling
$80,081.67.
Burrellys thereafter filed a motion for reconsideration and
a motion for remittitur, both of which were denied. The trial
court molded the jury award to reflect Burrellys's eighty-percent
share and a Medicare lien. After adding interest, attorney's fees
9 A-3731-15T2
and compensation for plaintiff's witnesses, final judgment was
entered on April 19, 2016, in the amount of $1,035,359.69.
IV.
Burrellys asserts the trial court erred by denying summary
judgment on the issue of causation because plaintiff presented no
evidence she slipped on any substance. Burrellys also contests
the granting of summary judgment to Frederick because plaintiff's
expert asserted the flooring, which was Frederick's
responsibility, was slippery and caused plaintiff's fall. We
disagree with both arguments.
Summary judgment must be granted if the court determines
"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). The court must "consider whether
the competent evidential materials presented, when viewed in the
light most favorable to the non-moving party in consideration of
the applicable evidentiary standard, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor
of the non-moving party." Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995). We "review the trial court's grant of
summary judgment de novo under the same standard as the trial
court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.
of Pittsburgh, 224 N.J. 189, 199 (2016).
10 A-3731-15T2
The following facts were presented to the trial court on
summary judgment regarding causation. Plaintiff gave a deposition
stating it was not raining on the day of the incident. She did
not notice any substances on the floor when she entered the shop.
She testified she believed she slipped on "some kind of liquid"
because, when she landed, her "pant leg felt wet." She testified
she never saw liquid on the floor but "felt [it on her] pants."
Burrell testified at her deposition that she was the only
person working at the shop the day of the incident, and when
plaintiff entered the shop, there were no other customers present.
Burrell testified the last customer departed more than thirty
minutes before plaintiff arrived. She stated if a customer asked
for condiments, they would be put on the sandwich and then each
sandwich wrapped and given to the customer. After plaintiff's
fall, Burrell testified she saw nothing else on the floor other
than plaintiff's blood. She did not touch plaintiff's clothes to
see if they were wet. She stated she usually swept during the
afternoon and mopped at the end of the day, unless it was necessary
to mop earlier.
The motion judge also had Nolte's expert report, which stated:
The sub shop sold drinks and had a self-
service refrigeration unit nearby the entrance
door. Again, mats were not in place at the
entrance to absorb any liquid that may come
from or be spilled from one of the drinks sold
11 A-3731-15T2
to a customer. Caren Frederick stated that
the building did not contain a roof leak at
the time. The reasonable source of liquid on
the floor was from a customer who purchased a
drink.
On November 20, 2015, the trial court issued an oral decision
denying summary judgment stating:
Plaintiff demonstrated the nature of the
Tastee Sub Shop business as a delicatessen
which permitted patrons to walk around the
common areas with drinks, . . . and did not
restrict the carrying of or consumption of
food and drink.
In cases that have previously applied the
[mode-of-operation] doctrine, the Plaintiffs
weren't able to specifically identify the
exact source of the slipping hazard.
. . . .
These cases made clear that Plaintiffs need
not specifically identify the source of the
hazard in order to obtain the benefit of the
mode of operation charge. It's enough that
Plaintiff produced sufficient proof
permitting the Jury to find the hazard more
than likely arose on the merchant's mode of
operation.
Plaintiff produced evidence that a source of
the liquid on the floor could potentially be
the self-service refrigeration unit located
next to the means of egress of the store by
the stairway.
Plaintiff's expert opines that the customers
carrying drinks out of the refrigerator and
shop provide a reasonable opportunity for
liquid to get on the floor in the area of the
customer.
12 A-3731-15T2
Further, several . . . safety councils . . .
note the good practice of maintaining the
premises by equipping floors with mats to
absorb liquid.
. . . .
. . . [T]he record contains conflicting
accounts of the events that transpired before
and after Plaintiff's fall. First, the amount
of time that the . . . alleged clear liquid
remained on the ground is unknown.
Plaintiff testified that she did not see the
liquid on the floor before her fall. After
the fall, Plaintiff looked at her clothing and
found that the bottom of her pant leg was
wet. . . .
. . . .
Also, at issue is whether Defendant's
maintenance of the store was
unreasonable. . . .
. . . .
Additionally, an issue[] remains regarding the
reasonableness of Defendant's decision not to
use floor mats. . . .
. . . .
[A]ny questions pertaining to the
reasonableness of [d]efendant's] actions or
inactions should be left for the Jury.
"[A] negligence cause of action requires the establishment
of four elements: (1) a duty of care, (2) a breach of that duty,
(3) actual and proximate causation, and (4) damages." Jersey
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Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594
(2013).
Business owners owe to invitees a duty of
reasonable or due care to provide a safe
environment for doing that which is within the
scope of the invitation. The duty of due care
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. Ordinarily an injured
plaintiff asserting a breach of that duty must
prove, as an element of the cause of action,
that the defendant had actual or constructive
knowledge of the dangerous condition that
caused the accident.
[Nisivoccia v. Glass Gardens, Inc., 175 N.J.
559, 563 (2003) (citations omitted).]
However, under the mode-of-operation doctrine a plaintiff is
relieved of proving actual or constructive notice where, "as a
matter of probability, a dangerous condition is likely to occur
as the result of the nature of the business, the property's
condition, or a demonstrable pattern of conduct or incidents."
Ibid. In such a case, the plaintiff is afforded "an inference of
negligence, imposing on the defendant the obligation to come
forward with rebutting proof that it had taken prudent and
reasonable steps to avoid the potential hazard." Id. at 563-64;
accord Bozza v. Vornado, Inc., 42 N.J. 355, 360 (1964)
("[D]efendant may then negate the inference by submitting evidence
of due care.").
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As noted by our Supreme Court in Prioleau v. Kentucky Fried
Chicken, Inc., 223 N.J. 245, 260 (2015), "in all of its prior
mode-of-operation cases, th[e] Court has emphasized the self-
service nature of the defendant's business."
[T]he mode-of-operation doctrine has never
been expanded beyond the self-service setting,
in which customers independently handle
merchandise without the assistance of
employees or may come into direct contact with
product displays, shelving, packaging, and
other aspects of the facility that may present
a risk. The distinction drawn by these cases
is sensible and practical. When a business
permits its customers to handle products and
equipment, unsupervised by employees, it
increases the risk that a dangerous condition
will go undetected and that patrons will be
injured. Thus, the mode-of-operation rule is
not a general rule of premises liability, but
a special application of foreseeability
principles in recognition of the extraordinary
risks that arise when a defendant chooses a
customer self-service business model.
[Id. at 262.]
In Craggan v. IKEA U.S., 332 N.J. Super. 53, 62 (App. Div. 2000),
we stated "[t]he unifying factor, however, is a mode of operation
designed to allow the patron to select and remove the merchandise
from the premises without intervention from any employee of the
storekeeper."
We have found the mode-of-operation doctrine to apply even
when plaintiff cannot definitively identify the substance that
caused the fall. In Walker v. Costco Wholesale Warehouse, 445
15 A-3731-15T2
N.J. Super. 111, 114 (App. Div. 2016), the plaintiff was shopping
at the defendant's warehouse store and passed a vendor offering
free samples of cheesecake in small paper cups. Plaintiff then
slipped on a substance on the floor, which he initially perceived
as having a yogurt-like appearance. Ibid. Plaintiff also noted
"his jogging pants were 'wet' and 'smeared' from the substance,
although he 'couldn't tell [the jury] exactly what it was.'" Ibid.
(alteration in original). The panel in Walker stated:
We recognize that plaintiff was unable to
identify with precision the substance on the
floor that allegedly caused him to slip.
There is a plausible basis, however, to
believe that the white substance could have
been cheesecake, which may well have become
softer, creamier, and more "yogurt-like" in
appearance after being displayed in sample
cups for some unspecified time at room
temperature. Plaintiff's inability to
describe the substance in more exact terms is
understandable given the sudden and traumatic
nature of his fall. Of course, he may well
have been mistaken in his description and the
substance could have come from another source,
but that is a factual matter for the jury to
evaluate.
[Id. at 126.]
The wetness of the plaintiff's pant leg in Walker was enough
to infer he had slipped on a substance causing his fall. The
panel concluded:
The trial court failed to give plaintiff the
benefit of these reasonable inferences when
it declined to allow the jurors as fact-
16 A-3731-15T2
finders to consider whether the factual
predicates for mode-of-operation liability
were proven here. Although plaintiff has not
provided a particularly compelling factual
basis to support his mode-of-operation
argument, he presented enough evidence to at
least justify the model charge being issued.
The jurors should have been allowed to
evaluate whether he met his threshold burden
of proving the necessary factual nexus to a
defendant's self-service activity. There also
remain important factual questions about
whether the substance was actually observed
on the floor, whether [defendant]'s
inspections were adequate, and whether the
locations and hours of the demonstrators'
activities actually coincide with plaintiff's
theory of liability.
[Id. at 127.]
We are convinced that the motion judge erred by finding that
the mode-of-operation doctrine applies in this case. Plaintiff
did not present sufficient evidence to show that the doctrine
applied. As Burrell explained, sandwiches were prepared and
wrapped for the customers. The shop had a refrigerator, which
contained salads and beverages in sealed containers. There was
no evidence that the dangerous condition in this case was due to
the customers' handling of the items in the refrigerator. The
facts did not present a situation where the customers' handling
of the items increased the risk that a dangerous condition could
go undetected and patrons would be injured. Moreover, the facts
in this case are significantly different from those in Walker
17 A-3731-15T2
because here there was no ready source of the alleged liquid or
substance found on plaintiff's clothing similar to any substance
being dispensed nearby.
Nevertheless, the motion judge did not err by denying
Burrellys's motion for summary judgment because there were genuine
issues of material fact as to whether Burrellys had actual or
constructive notice of the alleged dangerous condition. Plaintiff
presented evidence allegedly showing that Burrellys failed to
adequately inspect and maintain the floor in the shop, and did not
use mats near the steps where plaintiff fell. Plaintiff also
presented expert testimony from her liability expert Nolte on this
issue.
Burrellys further argues that the motion judge erred by
granting summary judgment to Frederick. Again, we disagree.
Burrellys argues "the court below seemed to ignore Mr. Nolte's
reported opinion that the vinyl flooring of the shop was improper
for a sandwich shop."
In his expert report, Nolte stated:
The vinyl composition tile floor inside the
sub shop was not going to absorb liquid. The
liquid was going to sit on top of the floor
and create a hydroplane for anyone who came
in contact with it. The mechanics of the fall
as described by Louise Hockman were consistent
with her foot or feet hydroplaning on the
floor surface due to a liquid.
18 A-3731-15T2
The trial court correctly decided that there was no genuine
issue of material fact regarding Frederick's alleged liability,
and Frederick was entitled to judgment as a matter of law. Section
10(e) of the store lease between Frederick and Burrellys states,
in pertinent part: "The Tenant shall . . . [k]eep the store and
any other part of the Building used by the Tenant as clean and
safe as possible."
Furthermore, Section 11 of the lease states: "The landlord
shall: (a) Maintain the common areas of the Building in a clean
condition. (b) Make any necessary repair to the Store and vital
facilities within a reasonable time after notice by the Tenant.
(c) Maintain the elevators in the Building, if any." In addition,
Section 15 provides, in pertinent part: "The Landlord is not liable
for loss, injury, or damage to any person or property unless it
is due to the Landlord's act or neglect."
Therefore, the lease placed the duty to maintain the leased
space in a safe condition on Burrellys. Frederick only assumed a
duty to maintain the common areas and to make repairs upon notice
from Burrellys. The area where plaintiff was injured was not a
common area, and Frederick was never notified of a condition
needing repair. Accordingly, under the lease, the duty to keep
the area where plaintiff was injured in a safe condition was solely
Burrellys's.
19 A-3731-15T2
Although Burrellys disclaims Nolte's report respecting its
own liability, the report does not present either a duty, a breach
of it by Frederick, or a material dispute in fact as to either
duty or breach, which would warrant denial of Frederick's motion
for summary judgment. For these reasons, the motion judge
correctly decided Frederick was entitled to summary judgment.
V.
As noted in the preceding section, the trial judge erred by
charging the jury on mode-of-operation. By doing so, the jury
could find negligence without finding Burrellys had actual or
constructive notice of the alleged dangerous condition. Under the
circumstances of this case, the mode-of-operation charge was
improper and the error requires a new trial.
VI.
Before trial commenced, Burrellys made in limine motions to
exclude Nolte's expert report and testimony as a net opinion. The
trial court did not bar Nolte's report, but limited his testimony
regarding the source of the liquid on which plaintiff slipped. We
hold the admission of testimony by Nolte regarding the source of
the liquid exceeded the scope of the in limine determination. The
admission of this improper testimony was clearly capable of
misleading the jury thereby causing an unjust result, and warrants
reversal for a new trial.
20 A-3731-15T2
Burrellys argues the trial court should have barred Nolte's
testimony because his "conclusion that a customer may have taken
a drink from the refrigerator and spilled it causing the liquid
on the floor, which in turn caused plaintiff to slip was 'total
speculation.'" Rather than bar plaintiff's expert on the eve of
trial, the trial judge opted to restrict Nolte's testimony. The
trial judge stated as follows:
[T]he expert, presumably, is basing his
determination that there was a liquid on the
plaintiff's testimony that she felt an area
that was damp. Now, the source of that liquid,
I agree with you, the expert should not
necessarily be able to speculate as to where
it came from. In other words, if [it] probably
came from a customer that purchased a drink.
There's a self-service machine there. That,
I agree, is speculation. But the fact that
there was some type of liquid, whatever it may
be, came from the plaintiff's testimony that
she felt something wet there.
. . . .
[I]t should not come from this expert that it
was soda purchased by a customer, or likely
to be because, quite frankly, you know, that
is sheer speculation.
Nolte did not, however, adhere to this limitation during the
trial. He testified: "[I]t's a sub shop where you're dealing with
oils and . . . vinegar, there's a refrigeration unit not too far
from the entrance where it's self service[.]" This prompted an
objection from defense counsel and the trial judge to warn the
21 A-3731-15T2
testimony was "treading very close to . . . violating the spirit
of the ruling," which was "to prevent this witness from testifying
as to what might be a source." The trial judge continued:
So, now he's talking about all of the things
that it could have come from, which is really
speculation on his part, because there's no
evidence in the record as to where this came
from. Now, we know it's a sub shop, we know
they serve all of these things, and so let the
jury make those calls[.]
Defense counsel asked the court to "instruct the jury to disregard
what [Nolte] just said." Plaintiff's counsel replied: "You want
to highlight the answer? Okay." The court said: "So, what do you
want me to tell them?" Defense counsel replied: "[L]et's move on.
Thanks, Judge."
Nolte continued to imply plaintiff slipped on a liquid and
opined about the potential sources of the liquid. He testified:
"[I]t wasn't until she got near the stairway on her way out that
all of a sudden she encountered a liquid that caused her to slip."
He then suggested a source for the substance: "Again, here [is] a
sub shop. You have sandwiches, you have vinegar, you have oil,
you have liquids, soda, water, whatever. There's a probability
of water – or – I keep saying water, but of liquid getting on the
floor." Nolte later testified: "[I]t's an area where there's a
probability of liquid being on the floor from the type of operation
that's there." When asked whether "the liquid that was on the
22 A-3731-15T2
floor came about from the manner in which Burrellys LLC does their
business," he responded, "that is my opinion."
N.J.R.E. 703 provides:
The facts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to the
expert at or before the hearing. If of a type
reasonably relied upon by experts in the
particular field in forming opinions or
inferences upon the subject, the facts or data
need not be admissible in evidence.
The net opinion rule, a corollary of N.J.R.E. 703, is more
or less "a prohibition against speculative testimony." Grzanka
v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997). "That is,
an expert's bare opinion that has no support in factual evidence
or similar data is a mere net opinion which is not admissible and
may not be considered." Pomerantz Paper Corp. v. New Cmty. Corp.,
207 N.J. 344, 372 (2011).
"[E]xperts generally[] must be able to identify the factual
bases for their conclusions, explain their methodology, and
demonstrate that both the factual bases and the methodology are
scientifically reliable." Landrigan v. Celotex Corp., 127 N.J.
404, 417 (1992). Thus, "expert opinion [must] be grounded in
'"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
23 A-3731-15T2
evidence but which is the type of data normally relied upon by
experts."'" Townsend v. Pierce, 221 N.J. 36, 53 (2015)(citation
omitted).
Here, there was no evidence to permit Nolte to suggest the
source of the liquid, which caused plaintiff's fall. Therefore,
the trial court's in limine ruling limiting his testimony was
correct. However, when Nolte ran afoul of the trial judge's in
limine instruction, defense counsel objected only once,
contemplated a curative instruction, and declined to pursue it.
Notwithstanding counsel's failure to strike Nolte's improper
testimony and seek a curative instruction, the admission of Nolte's
testimony was a clear violation of the judge's in limine ruling.
The admission of this improper testimony constituted plain error,
that is, and error "clearly capable of producing an unjust result."
R. 2:10-2.
Nolte was the only engineering expert in this case. He not
only identified the substance that plaintiff slipped on, he also
identified the potential source of the substance. As the judge
ruled, there was no evidence to support these statements. The
jury was more likely to rely upon these statements because they
were made by a person qualified as an expert. We therefore
conclude that the improper admission of this trial testimony
requires reversal of the judgment and a new trial.
24 A-3731-15T2
VII.
On appeal, Burrellys also argues: (1) the court erred by
allowing plaintiff to use certain medical illustrations prepared
by Dr. Grover; (2) the court erred by refusing to allow the use
of statements attributed to plaintiff in the hospital discharge
summary; (3) a new trial is required because plaintiff's counsel
made certain allegedly prejudicial comments in his opening and
summation; (4) the court erred by denying its motion for a directed
verdict; and (5) the jury's award was excessive. In view of our
decision reversing the judgment and remanding the matter for a new
trial due to the erroneous charge of the mode-of-operation doctrine
and the admission of Nolte's improper testimony, we need not
address these arguments.
Affirmed in part, reversed in part, and remanded for a new
trial. We do not retain jurisdiction.
25 A-3731-15T2