Personal Injury Complaint Dismissed Because the Plaintiff’s Expert Report May Have Been Sufficient to Overcome Summary Judgment
Docket No.: A-210-20
Decided July 18, 2022
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division overturned a dismissal of a personal injury complaint because the plaintiff’s expert report may have been sufficient to overcome summary judgment.
In Broome v. Shoprite, Plaintiff alleges she was involved in what she characterizes as a “slip but not fall” in defendant’s supermarket. The incident is alleged to have occurred between 4:00 and 4:30 p.m. on Saturday, July 16, 2016. At that time, between 80 and 100 of defendant’s employees were working at the supermarket, with slightly more than half of the employees located in the front of the store near the checkout aisles and registers.
According to plaintiff, as she “walked around [her shopping] cart to begin placing items on the conveyor belt, [she] slipped on [a] puddle of liquid” that she claimed, “leaked from a [refrigerator] located near the checkout register.” Plaintiff asserts she fell backwards and, as she attempted to “catch” herself, she grabbed the cart and “wrench[ed]” her left shoulder and neck, thereby twisting her torso in an “awkward manner.”
Plaintiff did not see any liquid on the floor before she slipped, but afterward she determined that she slipped on water, the amount of which she estimated was approximately equivalent to that found in a sixteen-ounce bottle. Plaintiff recalled there were two other customers ahead of her in the checkout aisle paying for their items when she slipped.
Plaintiff testified she did not know the source of the water. She knew only the water “was close enough to the back of” the refrigerator that was located “near” the checkout aisle. However, she admitted she did not know if the water actually came from the refrigerator. Plaintiff admitted in response to defendant’s Rule 4:46-2 statement of undisputed material facts that the refrigerator was owned and maintained by Grayhawk d/b/a Pepsi Beverages Company (Grayhawk). Plaintiff did not present any evidence the refrigerator was maintained by defendant.
In discovery, Grayhawk produced its service records from November 1, 2015, through December 1, 2016. The only records concerning the refrigerator located at the checkout aisle in which plaintiff alleged she slipped are dated January 19, 2016, more than six months before the incident.
Plaintiff retained a liability expert, Seybold. In his January 8, 2020 report, Seybold states “[t]he objective of [his] assignment was to determine if the reported puddle of water on the floor at Millville Shoprite” came from “a sudden water leak or from a slow water leak that occurred over a long period of time out of a” refrigerator. Seybold’s report explained he performed an inspection of the refrigerator on October 21, 2019—more than three years after the date of plaintiff’s accident. He observed that, at the time of his inspection, there was “a substantial amount of dirt and dust” in the refrigerator.
Seybold’s report continued to suggest that a clogged drain may have been the issue, and provided a calculation of the flow rate out of the refrigerator assuming there was no evaporation rate, but failed to provide support for the calculations.
Defendants filed a motion for summary judgement and a net opinion motion, attempting to bar Seybold’s report and testimony and dismiss Plaintiff’s complaint. The Court found that Seybold’s report was an inadmissible net opinion because of his reporting on the rate of evaporation for a cooler in general and what effect insufficient maintenance is on a cooler in general, as he provided no support for his calculations. Because plaintiff lacked an expert report, plaintiff could not prove her case and the matter was dismissed.
Plaintiff appealed and the Appellate Division reversed, finding that while it agreed Seybold could not testify as to the rate of evaporation and effect of improper maintenance, he could testify as to the effect of lack of maintenance causing the refrigerator to overflow. The Appellate Division reversed and remanded for a Rule 104 hearing for Seybold to elaborate on this issue to further determine whether his testimony on the subject could proceed to trial, otherwise the complaint would be dismissed.
This case is important to understand plaintiff’s complaint was almost dismissed with prejudice simply because the attorney did not arrange for an appropriate liability expert to determine the cause of the spill coming from the refrigerator. The expert also did not examine the machine until three years after the fall. In personal injury cases, it is vital to hire an experienced attorney who can help put the plaintiff hire an expert known to produce correct reports demonstrating liability causing an injury. Without the correct report, the result would be a dismissal of the complaint and no right to recovery.
If you or someone you know has been injured in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.