Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
Plaintiffs’ case becomes another slip and fall dismissal due to their expert’s net opinion and no facts specifically identifying the hazardous condition on defendant’s property.
In this case plaintiffs went to the Coach store located in the Short Hills Mall. While reaching for a handbag on a shelf Mrs. plaintiff slipped and fell fracturing her shoulder. Plaintiff testified at her deposition that she was approached by a sales clerk who “indicating a lot of people slip in the store”, “we all have to wear rubber soled shoes.” That was the only factual identification plaintiff could point to in her deposition regarding a “dangerous condition quote. Plaintiffs’ expert also issued at a three page written report describing the wood floor. Plaintiffs’ expert also testified he never personally examined the four yet opined that the slippery conditions attributed to excessive water used during the cleaning.
Defense counsel filed a motion to dismiss arguing the plaintiffs’ expert opinion comprise a net opinion and there are no facts in the record reflecting sufficient proof of the elements of negligence to warrant a trial.
I have written numerous blogs regarding the net opinion and the experts obligation to base their opinions on well establish standards policies and or procedures within their expertise. In addition the expert must base their opinion on facts contained in the record. When the facts are insufficient to support the opinion, the expert can not just provide the opinion anyway, nor can they create facts not part of the record. In this case the expert had not even personally examined the floor, let alone provided any factual basis for his conclusions.
The court recognized this case is not one which required an expert because the issue, slippery floors, was not beyond the reach of a lay person’s understanding. However, as a matter of fact, the plaintiff did not identify any hazard which would be identifiable as a “defect” under New Jersey slip and fall case law. Hence the court dismissed the case finding, “the proof is simply lacking here.”
Jeffrey S. Hark, Esq.