NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2169-14T1
MINDY KLARMAN,
Plaintiff-Respondent,
v.
PATHMARK SUPERMARKET and PATHMARK OF LAKE HOPATCONG,
Defendants-Appellants. __________________________________
Argued November 7, 2018 – Decided December 24, 2018
Before Judges Yannotti, Gilson and Natali.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1284-11.
Edward J. De Pascale argued the cause for appellants (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; William C. Carey, on the briefs).
Craig M. Rothenberg argued the cause for respondent (Rothenberg, Rubenstein, Berliner & Shinrod, LLC, attorneys; Elizabeth H. Hamlin, on the brief).
PER CURIAM Defendants Pathmark Supermarket and Pathmark of Lake Hopatcong
appeal from an order entered in this matter on December 4, 2014, which denied
defendants' motion for a new trial or remittitur, and entered judgment for
plaintiff in the amount of $1,530,000, plus prejudgment interest, and attorney's
fees and costs pursuant to Rule 4:58-2(a), the offer of judgment rule. We affirm.
I.
In May 2011, plaintiff filed a complaint alleging that on January 31, 2011,
she was in defendants' supermarket in Lake Hopatcong and fell. Plaintiff alleged
defendants allowed a dangerous and hazardous condition to exist on the
property, which caused her to fall. Plaintiff claims she sustained severe,
personal injuries for which she sought damages, interest, and the costs of suit.
Thereafter, the parties engaged in discovery and the parties exchanged offers of
judgment pursuant to Rule 4:58-1. Plaintiff rejected defendants' offer, and in
September and October 2014, the matter was tried before a jury.
At trial, plaintiff testified that on January 31, 2011, she went with her son
to defendants' supermarket to purchase some items that she needed. Plaintiff's
son remained in the car while plaintiff entered the store. It was a sunny day, but
it had snowed before that day, and there were piles of snow in the parking lot.
Plaintiff did not take a shopping cart, but she noted that they were stored outside
A-2169-14T1 2 the store and throughout the parking lot. Plaintiff did not recall whether there
was a mat on the floor in the vestibule or the entrance to the store.
Plaintiff went to the produce aisle and "grabbed" several items. She
proceeded to the meat department, where she picked up some chicken. Plaintiff
then went to the check out to pay for her items. She slipped and landed on her
left knee. Plaintiff said that she tried to break her fall with her left arm. She
was carrying a shopping basket in her right hand. She said the basket "went
flying with [her] groceries."
Plaintiff stated that she was on the floor and several individuals came to
her aid. A police officer asked her where she slipped, and she replied, "right
there." She observed "a puddle of water or a liquid" at that location. Plaintiff
estimated the puddle was about twelve inches in diameter.
Plaintiff stated that she injured her left shoulder and left knee. She felt
"excruciating" pain in her knee. She also said she hurt her neck and back.
Emergency medical personnel arrived, placed her on a stretcher, and transported
her by ambulance to a hospital.
At the hospital, plaintiff learned she had fractured her shoulder and knee,
and required surgery. The surgery was performed and five days later, plaintiff
was discharged from the hospital. She returned to the hospital two weeks later
A-2169-14T1 3 to have surgical staples removed from her knee. Thereafter, plaintiff engaged
in multiple rounds of physical therapy for the injuries to her shoulder and knee.
Plaintiff further testified that her knee remained "swollen and hot for a
couple of years after that injury." She estimated that she last received medical
treatment for her injuries in 2013. Plaintiff stated that at the time of her final
visit, her shoulder had a good range of motion and her ability to bear weight had
improved from the time of the injury. She stated her knee also had a good range
of motion, but weight bearing was still painful. Prior to the final visit, plaintiff's
physician diagnosed her with arthritis underneath the kneecap, and administered
gel injections to help alleviate the pain.
At the time of the accident, Reginald Slavin was the assistant store
manager for the supermarket. He was deposed, and at trial, the parties agreed
that Slavin's deposition testimony would be read into the record. Slavin testified
that at the time of plaintiff's accident, he was responsible for the entire store.
There were about thirty-five persons working in the store that day, and one of
those individuals was a porter, who had responsibility to clean and maintain the
premises.
Slavin said that after plaintiff fell, he was the first person on the scene,
and he observed water on the floor. He stated that the water had come from
A-2169-14T1 4 snow "that shook off the bottom of carriages because there was snowfall and it
was on the bottom of the carriages." He was asked if he understood that
customers had entered the store, bringing shopping carts from outside the store,
which had snow on them. Slavin replied, "Yes."
Slavin agreed that the snow on the shopping carts would melt and the
water would drip on the floor. Previously, Slavin determined the most efficient
way to deal with the water problem was to place mats on the floor. The mats
would collect most of the water that had fallen from the carts. Slavin believed
this is how the water got onto the floor on the day plaintiff was injured.
Slavin further testified that the supermarket did not have a protocol which
required an employee to go through the market on a regular basis to ensure there
was no water on the floor from the shopping carts. He said the porter did not
have responsibility for cleaning the snow, ice, or wetness from the shopping
carts before customers or employees brought them into the store. He also stated
the supermarket did not have a protocol to ensure that snow or ice did not
accumulate on the shopping carts.
Plaintiff also presented testimony from Steven Nehmer, M.D., an
orthopedic surgeon. Nehmer explained that based on his examination of
plaintiff's injuries and a review of her medical records, he believed plaintiff's
A-2169-14T1 5 fall on January 31, 2011, caused the injuries to her left shoulder and left knee.
Nehmer stated that arthritis was present beneath plaintiff's kneecap, which was
related to the fall and subsequent fracture. He explained that arthritis is a
progressive condition, which causes increased pain when an individual engages
in physical activity. Nehmer further testified that he did not expect plaintiff to
recover fully from her injuries. He stated that plaintiff will "always have some
symptoms, in her shoulder probably more intermittently, but certainly in her
knee she will have pain, and chances are with time it will grow wors[e]."
After the evidence had been presented, the judge conducted a charge
conference. Over defendants' objection, the judge ruled that he would instruct
the jury on the mode-of-operation rule and instruct the jury that plaintiff would
not have to prove defendants had actual or constructive notice of the alleged
dangerous condition.
Defendants then moved for involuntary dismissal of the complaint
pursuant to Rule 4:37-1(a), and plaintiff filed a motion for a directed verdict on
the issue of liability. The judge reserved decisions on the motions. Counsel
then presented their closing arguments, and the judge instructed the jurors on
the principles that they should apply in reaching their decision.
A-2169-14T1 6 The jury returned a verdict in plaintiff's favor and awarded her $1,500,000
for pain, suffering, disability, and the loss of the enjoyment of life, along with
$30,000 for lost income. Thereafter, defendants filed a motion for a new trial
or remittitur. After hearing oral arguments, the judge denied the motion. The
judge entered an order dated December 4, 2014, which denied the motion and
entered judgment for plaintiff. This appeal followed.
II.
Defendants first argue that the trial judge erred by charging the jury in
accordance with the mode-of-operation rule. Defendants contend the jury's
decision should have been governed by general negligence principles pertaini ng
to injuries sustained by business invitees due to a dangerous condition of the
business's property. We disagree.
In New Jersey, a business owner owes invitees "a duty of reasonable or
due care to provide a safe environment for doing that which is within the scope
of the invitation." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003).
A business owner has an affirmative duty to inspect the premises, discover or
eliminate dangerous conditions, and maintain the premises in a safe condition.
Ibid.
A-2169-14T1 7 Generally, a business owner is not liable for injuries caused by a
dangerous condition on its property unless the owner had actual or constructive
notice of the condition. Ibid. The plaintiff may show the defendant had
constructive notice of the condition if it existed for a sufficient length so that a
reasonably diligent person would have known of the condition. Parmenter v.
Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957).
The mode-of-operation rule is a "special application of foreseeability
principles" created to address the risks posed by certain businesses whose
operations involve customer self-service. Prioleau v. Ky. Fried Chicken, Inc.,
223 N.J. 245, 262 (2015) (citing Nisivoccia, 175 N.J. at 563-66; Wollerman v.
Grand Union Stores, Inc., 47 N.J. 426, 429-30 (1966); Bozza v. Vornado, Inc.,
42 N.J. 355, 358-60 (1964)). Under the mode-of-operation rule, business
invitees who are injured while engaged in customer self-service are "entitled to
an inference of negligence" and need not "prove that the business owner had
actual or constructive notice of the dangerous condition that caused the
accident." Id. at 248.
To apply the mode-of-operation rule, the court considers the following.
First, the plaintiff must show that he or she sustained an injury in a self-service
setting, where customers independently handle merchandise or "come into direct
A-2169-14T1 8 contact with product displays, shelving, packaging, and other aspects of the
facility that may present a risk" to the invitee. Id. at 262. Second, the accident
occurred in an area "affected by the business's self-service operations, [however,
the area] may extend beyond the produce aisle of supermarkets and other
facilities traditionally associated with self-service activities." Ibid. Third, the
rule is not limited to situations in which a customer's negligence creates a
dangerous condition. Id. at 263.
When the mode-of-operation rule applies, the plaintiff is entitled to an
inference of negligence, which shifts the burden of production to the defendant.
Ibid. The defendant may avoid liability if it presents evidence showing it did
all that a reasonable prudent person would have done in light of the risk of injury
the mode of operation entails. Ibid.
Here, the trial judge correctly ruled that the mode-of-operation rule
applied. It is undisputed that defendants' supermarket is a self-service operation,
and plaintiff was injured in an area affected by the market's self-service
operation. Plaintiff testified she slipped and fell due to a puddle of water on the
floor of the store, near the check-out section. Slavin testified unequivocally that
customers brought shopping carts into the store, and the carts were laden with
A-2169-14T1 9 snow, which had fallen earlier. Once inside, the snow melted and collected on
the floor.
Slavin testified that mats were placed on the floor to address the situation.
He also stated that the store did not have a regular protocol for inspecting the
premises to ensure there was no accumulation of water from snow brought into
the store on shopping carts. Furthermore, the store's porter was not required to
address such conditions on a regular basis. We are convinced the evidence met
the requirements for application of the mode-of-operation rule.
On appeal, defendants argue that the mode-of-operation rule did not apply
in this case because the rule generally has been confined to dangerous conditions
arising from the handling of merchandise or the placement of products.
Defendants note that plaintiff was not injured due to the handling of any
merchandise or the placement of any product.
However, in Prioleau, the Court noted that the mode-of-operation rule can
be applied to a self-service business, when the customer sustains an injury due
to the manner in which the customer or an employee handles merchandise or
equipment. Ibid. Here, it is undisputed that the shopping carts were the store's
equipment, and they were an essential aspect of defendants' self-service business
model.
A-2169-14T1 10 Moreover, as Slavin explained, it was the supermarket's mode of operation
to allow the shopping carts to remain outside the store, unprotected from the
accumulation of snow. The store allowed customers to bring carts laden with
snow inside, and it did not have a policy for removal of any accumulated snow
from the carts before customers brought them inside.
Defendants further argue that the trial judge should not have charged the
jury on the mode-of-operation because the facts here are similar to the facts in
Prioleau. In that case, the plaintiff asserted, among other things, that the
defendant had allowed a dangerous condition to exist in its restaurant, which
was allegedly created when patrons tracked water into the building on a rainy
evening. Id. at 265.
The Prioleau Court held that the mode-of-operation rule would not apply
to such a claim. The Court stated, "The potential for customers to track water
into a building during inclement weather is not contingent on a defendant's
business model; that risk exists in virtually any facility that admits patrons from
public sidewalks or parking areas into its facility." Ibid. In this case, however,
the potential for customers to track snow into the building was contingent upon
defendant's business model, which involves the use of shopping carts in the
market's self-service operation.
A-2169-14T1 11 III.
Next, defendants argue that the jury's award of damages for pain and
suffering, disability, impairment, and the loss of the enjoyment of life, should
be set aside on several grounds. Defendants contend plaintiff's attorney made
improper comments in summation. They also contend the award is grossly
excessive.
Defendants argue that in his closing argument, plaintiff's attorney made
an improper argument regarding the award of damages. Counsel stated that
"[plaintiff is] going to live about 300,000 hours with [her] injury, millions of
minutes with this injury." He also stated that
[Y]ou can do the math - - 60 minutes times per hour, whatever it is - - it's millions and millions of minutes. And I want you to think about that. Not that there's a magic to it, because there isn't. But when you're thinking about how to possibly compensate her not just for the three-and-a-half years she's been suffering up until now, but for the 28.5 years or so - - more less, whatever you decide, going forward.
Defendants did not object to counsel's remarks when they were made. They first
raised this issue when they moved for a new trial.
On appeal, defendants argue that plaintiff's counsel made an improper
argument based on the "Golden Rule." That rule is based on the principle that
"you should do unto others as you would wish them to do unto you[.]" Geler v.
A-2169-14T1 12 Akawie, 358 N.J. Super. 437, 464 (App. Div. 2003). Here, plaintiff's counsel
did not invoke the rule. Counsel did not ask the jurors to place themselves in
plaintiff's position or otherwise suggest that the jurors should decide the case
based on their personal interests or biases.
Defendants further argue that the evidence presented at trial did not
support counsel's assertion that plaintiff would experience pain and suffering for
"millions" of minutes. Defendants contend the evidence showed that plaintiff's
shoulder injury had essentially resolved, and her knee injury "had progressed
well." Again, we disagree.
At trial, plaintiff testified that she experiences pain from her injuries when
she engages in certain routine activities. Plaintiff stated that since the accident,
she has had pain at some point every day. Moreover, Nehmer, plaintiff's medical
expert, testified that plaintiff developed arthritis due to her knee injury, and the
arthritis is permanent. Nehmer stated that plaintiff's pain will likely increase
over time.
In addition, at the charge conference, the parties agreed the plaintiff's life
expectancy is 28.5 years. Thus, the assertion by plaintiff's attorney that plaintiff
will suffer pain for "millions" of minutes has sufficient support in the evidence.
The comment was not improper.
A-2169-14T1 13 Defendants also contend that plaintiff's counsel's assertions were not a
proper time-unit argument under Rule 1:7-1(b). The rule provides that "[i]n civil
cases any party may suggest to the trier of fact, with respect to any element of
damages, that unliquidated damages be calculated on a time-unit basis without
reference to a specific sum." Ibid. As noted, plaintiff's counsel stated that the
jury could calculate damages by reference to units of time; however, counsel did
not refer to a specific sum. Therefore, the comments were not improper.
In addition, defendants contend the jury's award is grossly excessive.
Defendants argue that the trial judge should have set aside the award for pain
and suffering, disability, impairment, and the loss of the enjoyment of life, and
should have ordered a new trial on damages. Alternatively, defendants contend
the trial judge should have ordered a remittitur.
"A jury's verdict, including an award of damages, is cloaked with a
'presumption of correctness.'" Cuevas v. Wentworth Grp., 226 N.J. 480, 501
(2016) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977)). To
overcome this presumption, a defendant need establish "clearly and
convincingly," that the damages award is "a miscarriage of justice." Ibid.
(quoting Baxter, 74 N.J. at 596).
A-2169-14T1 14 "In deciding whether to grant a new trial or remittitur based on a
purportedly excessive damages award, the court must give 'due regard to the
opportunity of the jury to pass upon the credibility of the witnesses.'" Ibid.
(quoting Ming Yu He v. Miller, 207 N.J. 230, 248 (2011)). Therefore, a "judge
may not substitute his [or her] judgment for that of the jury merely because he
[or she] would have reached the opposite conclusion; he [or she] is not a . . .
decisive juror." Ibid. (quoting Baxter, 74 N.J. at 598).
In this case, the trial judge determined that defendants did not meet the
standard for a new trial or remittitur. In ruling on defendants' motion, the judge
observed that the accident was "very serious." The judge noted that plaintiff
testified that when she fell, she experienced excruciating pain. Plaintiff
fractured her kneecap, suffered a break in her shoulder, and required surgery.
The judge observed that plaintiff's shoulder injury has essentially resolved. The
judge added, however, that plaintiff continued to experience difficulties
resulting from the injury to her knee.
The judge pointed out that plaintiff testified that she continued to
experience pain, and it affected her ability to sleep and walk. The judge stated
that at the time of trial, plaintiff was fifty-two years of age, and she had a life
expectancy of about twenty-nine years. The testimony indicated she will
A-2169-14T1 15 experience pain every single day of her life while awake, and the pain will
worsen over time, thereby interfering with her ability to walk and to sleep. The
judge found that the verdict was "very generous" but it did not shock the judicial
conscience.
We are convinced the judge's findings are supported by the evidence
presented at trial. The record supports the judge's determination that defendants
did not meet the standard for a new trial, and there was no basis for setting aside
the jury's award or for a remittitur.
IV.
Defendants raise several other arguments with regard to the summation by
plaintiff's attorney. Defendants contend plaintiff's counsel made improper,
disparaging comments about defendants' attorney and his summation.
Defendants first raised this argument on the motion for a new trial.
"[I]t is improper for an attorney to make derisive statements about parties,
their counsel, or their witnesses." Szczecina v. PV Holding Corp., 414 N.J.
Super. 173, 178 (App. Div. 2010). In addition, an attorney "may not use
disparaging language to discredit the opposing party, or witness, or accuse a
party's attorney of wanting the jury to evaluate the evidence unfairly, of trying
to deceive the jury, or of deliberately distorting the evidence." Ibid. (quoting
A-2169-14T1 16 Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171-72 (App.
Div. 2004)).
On appeal, defendants contend plaintiff's counsel improperly stated that
defendants' attorney was "trying to sully up what [the] case" was about by
referring to "herniated disks" and plaintiff's prior ice skating accident. Plaintiff's
counsel stated this was "extraneous nonsense." At another point, plaintiff's
attorney asserted that the case was "getting muddied . . . [and] dirtied up."
Counsel stated that defendants did not want to talk about plaintiff's injuries or
its negligence because they could not "win."
We are convinced the comments were not improper and did not deny
defendants of their right to a fair trial. The comments were primarily addressed
to the substance of the closing argument of defendants' attorney. They were not
an attempt to disparage defendants' attorney or have the jury unfairly evaluate
the evidence. Significantly, defendant's attorney did not object to the comments
when they were made. We can therefore assume defendants' counsel did not
believe the comments were unduly prejudicial. State v. Timmendequas, 161
N.J. 515, 576 (1999).
Defendants further argue that plaintiff's counsel improperly commented
on "subsequent remedial repair" of the alleged dangerous condition. The
A-2169-14T1 17 contention lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We
note, however, that Slavin testified that after plaintiff fell, he wiped the floor to
ensure that no one else fell. Defendants did not object to the introduction of this
evidence. Thus, the comment by plaintiff's counsel was proper because it was
based on evidence admitted at trial.
Furthermore, in denying the motion for a new trial, the trial judge found
that Slavin's testimony was not evidence of a subsequent remedial measure
under N.J.R.E. 407. Slavin's testimony was essentially a description of the
condition of the premises at the time plaintiff fell. It was not introduced as
evidence of a remedial measure, "taken after an event," and it was not presented
to "prove that the event was caused by negligence or culpable conduct." Ibid.
Affirmed.
A-2169-14T1 18