Opinion
DOCKET NO. A-2183-13T3
01-29-2015
JEFFREY and JUDITH MARVIN, Plaintiffs-Appellants, v. WEGMANS FOOD MARKET, Defendant-Respondent and MANALAPAN EPICENTER and STEINER EQUITY GROUP, Defendants.
Widman, Cooney, Wilson, McGann & Fitterer, attorneys for appellants (Catherine M. Carton, on the brief). Eckert Seamans Cherin & Mellott, LLC, attorneys for respondent (Jason S. Feinstein, of counsel; Mr. Feinstein and Nicholas M. Gaunce, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4098-11. Widman, Cooney, Wilson, McGann & Fitterer, attorneys for appellants (Catherine M. Carton, on the brief). Eckert Seamans Cherin & Mellott, LLC, attorneys for respondent (Jason S. Feinstein, of counsel; Mr. Feinstein and Nicholas M. Gaunce, on the brief). PER CURIAM
In this personal injury case, plaintiff Jeffrey Marvin appeals from the order of the Law Division dismissing his cause of action against defendant Wegmans Food Market as a matter of law. The court granted defendant's summary judgment motion finding plaintiff failed to produce competent evidence showing that one of defendant's employees negligently placed a restocking "produce trolley" directly behind plaintiff, without alerting him to its presence. Independent of this alleged legal deficiency, the court also concluded that plaintiff's theory of liability against defendant required him to provide expert testimony on the procedures related to produce restocking that defendant allegedly failed to follow in this case.
Although Judith Marvin is also a named a plaintiff, we will refer to "plaintiff" in the singular throughout this opinion because her per quod claims are derivative from her status as Jeffrey Marvin's wife.
After reviewing the record developed by the parties before the motion judge, we reverse the order dismissing plaintiff's case and remand the matter for trial. Because the trial court dismissed this case by granting defendant's motion for summary judgment, we will recite the relevant facts in the light most favorable to plaintiff, including giving him the benefit of all inferences that can be reasonably drawn from such facts. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
I
The accident occurred on Friday July 2, 2010. Plaintiff and his wife had planned a family gathering to celebrate the Fourth of July holiday on Sunday. In preparation for this event, plaintiff went shopping for corn at Wegmans Food Market in Ocean Township. With him that day at Wegmans was his cousin Ada Hasloecher, who resided at the time in Farmingville, New York. She had accepted plaintiff's and his wife's invitation to spend the holiday weekend at their home in Monmouth County. Plaintiff gave the following account of how the accident occurred at his deposition:
In his complaint, plaintiff identifies the Wegmans at issue as being located in Ocean Township. Defendant has stated that the Wegmans is located in Manalapan. Because the location of the store is not a material issue in this case, we leave it to the parties to clear up this inconsistency on remand.
I walked up to the corn bin where they pile corn up for customers to bag and I started at one end and I was moving down because I think the produce person had just dumped a fresh batch of corn in the bin. So I was moving from the outside to the inside or toward the middle part of the bin to select what I thought would be the freshest and the best ears of corn.
Q. Just for understanding, do you remember how big the corn bin is?
A. I'm guessing the corn bin was probably at least six feet in length and probably between three and four feet wide.
Q. Okay.
A. It even could have been eight feet, but it was a large rectangle of a bin that stood - - probably the top of the bin was probably this table height and the corn was piled on top . . . of it.
Q. And this table height is, approximately?
A. 32 to 36 inches. Probably 32 inches high.
Q. Okay. As you moved towards the center of the bin what happened next?
A. I picked up the corn, put them in the bag, turned around and out on the left corner of my eye I noticed a pile of thin wooden slatted crates that I assume were ready to be dumped onto the bin. And I just walked forward toward my cousin who was waiting for me with the cart about 10 to 15 feet away. I recall that it was a crowd of people around the corn bin picking corn.
Q. And what happened next?
A. I tripped on a — I guess I'll call it a produce trolley. I didn't know at the time but afterward I noticed that it was a trolley that was about four to six feet long, very narrow, had wheels, so that the base of the trolley stood about, I'm guessing, about six to nine inches off of the floor and there was a restraining heavy metal restraining bar that's U-shaped on one
end and U shaped on the other. I think the cart was green.
Q. When did you see the cart?
A. After I fell.
In response to defendant's interrogatory requesting "the names and addresses of all persons who have knowledge of any facts relating to the case," plaintiff identified "Aida Haslocher, Farmington, New York." By letter dated May 1, 2012, defendant's counsel asked plaintiff's counsel whether he intended "to voluntarily produce her for deposition and if so, provide the dates of her availability. If you do not intend to produce her, kindly provide her contact information." Plaintiff's counsel did not provide this information in response to defense counsel's May 1, 2012 letter.
Defendant noted in its brief before us that plaintiff "misspelled both his cousin's first and last names, and misidentified where she lived." Her correct place of residence is Farmingville, New York. However, this oversight was corrected by Hasloecher herself in her notarized letter dated September 30, 2013. Finally, this inadvertent discrepancy is ultimately immaterial because defendant did not make any attempt to depose this key witness before the end of the discovery period, nor identify how this initial error concerning Hasloecher's place of residence prejudiced its ability to defend this case.
By letter dated August 2, 2012, defense counsel again requested plaintiff's counsel to provide the contact information concerning this "eyewitness to the accident." Plaintiff's counsel again failed to respond. In the course of deposing plaintiff on September 6, 2012, defense counsel received the correct spelling of this eyewitness' name. Unfortunately, however, plaintiff misidentified her place of residence as "Farmingdale" as opposed to "Farmingville."
Defense counsel acknowledged plaintiff's cooperation in this respect in a letter dated September 17, 2012. Defense counsel also asked plaintiff's counsel whether he would "produce her for a deposition in New Jersey." Defense counsel concluded the letter as follows: "If you intend to call her as a witness at trial, we expect that she will be voluntarily produced without the need for a subpoena." The record does not contain any further communications between the attorneys concerning this witness. Defense counsel did not serve plaintiff's counsel with a notice to depose Ada Hasloecher.
Defendant's employee James Saez was stocking corn when plaintiff allegedly tripped over the produce cart. Saez gave the following account of how the accident occurred:
A gentleman walked over to the corn display, saw that I was dumping out that crate and he then persisted in coming between the runner and the corn bin and grabbing what he thought was the freshest corn. He said that's the good corn and, you know, I want to say got three to four husks, didn't husk them, put them in his bag and while I was rearranging the corn, after I dumped it, fixed it up [to] make sure it looks nice, he
fell through my runner on the other side. That's what happened.
We infer from this colloquy that Saez uses the word "runner" to mean the cart he uses to transport produce to restock the bins located in the store's public areas where the customers shop.
Saez also described Wegmans' procedure for stocking corn in the produce department:
Q. Okay. Do you dump the corn out of the box?
A. Sometimes, it depends. Like if I don't need to dump it, I'll take it out and place it neatly I will, but sometimes I dump it as well.
. . . .
Q. Do you make it a practice to take your runner and bring it right up flush to the corn . . . ?
A: No. It would be way too much lifting and going around with the runner to pour it out. With corn myself I do leave a body space.
Q. So, you always leave a space for your body between you and the runner?
A. Yes.
Q. You and the display?
A. Yes.
Q: Did you ever get trained on how to use the runner here at Wegmans?
A: Yes. We have a policy, pull don't push policy and that's the training they use or
the policy that we use for the last four years since I've been here.
Q: How about stocking and the placement of the runner, did anybody ever advise you where to place the runner?
A: Yes. You know, not in the customer's way or not blocking any produce. Most of the time we're not allowed to leave empty runners on the floor, you know if there's empty product in the customer's way, safety and that's pretty much all they advised you of the runner where it is. Make sure it's not in anybody's way or loose boxes that won't fall on anybody just like that.
II
By the time defendant moved for summary judgment the discovery period had ended and the matter was scheduled for arbitration. Relying on the evidential record we have recited and citing two unpublished opinions by this court, defendant argued to the Law Division judge that plaintiff could not prove a "failure to warn" cause of action without expert testimony.
We recognize that modern technological advances have exponentially increased the availability of unpublished opinions by this court. Indeed, the New Jersey Judiciary website posts our unpublished opinions on a daily basis. We are also mindful that our colleagues at the trial court may be inclined to be deferential to any exposition of law expressed by this court, whether published or not. However, until otherwise decided by our Supreme Court, we continue to caution our colleagues at the trial level that Rule 1:36-3 makes clear that unpublished opinions from this court have no precedential value and should not be relied on as binding authority. See also Mount Holly Twp. Bd. of Educ. v. Mount Holly Twp. Educ. Ass'n, 199 N.J. 319, 332 n.2 (2009).
Plaintiff filed a timely opposition to defendant's motion supported by a memorandum of law and a counterstatement of material facts, including a notarized letter from Ada Hasloecher disputing Saez's account of how the accident occurred. She gave the following description of what she witnessed:
I observed a young, male staff person wheel a steel cart loaded with fresh corn to the table. He left the cart right behind my cousin's and other patron's backs and walked away. I thought he was going to come right back and move it as it seemed a dangerous place to install the loaded cart.Although Hasloecher's statement was not formatted as an affidavit, the letter began with the following affirmation: "the following explanation of the event that occurred on July 2, 2010 is the truth under penalty of perjury."
When it was apparent to me that he was not returning to move it, I called out to my cousin to be careful behind him. But given that the area was so noisy with people, he didn't hear me. The next thing I saw was Jeff trying to take a step back and turn. As he stepped backwards, he collided with the cart, lost his balance as he fell and landed with a huge clamor, flat on his back on the floor.
After considering the arguments of counsel, the motion judge granted defendant's motion and dismissed plaintiff's complaint as matter of law. The motion judge rejected Hasloecher's notarized statement, finding it did not "meet the evidentiary standard of a motion for summary judgment." In addition to this ostensible problem, the motion judge found an independent basis for dismissing plaintiff' complaint.
Even if Hasloecher's notarized statements were legally admissible, thus creating a disputed material factual issue, the motion judge ruled that plaintiff could not establish that defendant breached a duty of care without expert testimony. Specifically, the motion judge concluded that plaintiff had failed to show that defendant should have done something differently in the manner it placed a cart for restocking, "and in particular corn." Stated differently, the judge concluded that where the restocking cart should have been placed under these circumstances was not within the ken of the average juror.
Plaintiff thereafter filed a motion for reconsideration supported by a properly formatted certification from Hasloecher. The judge denied this motion, finding it "[was] not clear to the Court that it would have been so burdensome for the plaintiff to obtain a proper certification in time for the return date [of the original summary judgment motion], such that the evidence could not have been provided. In fact, the certification was obtained a mere five days after the return date[.]"
III
We review a grant of summary judgment de novo, applying the same standard that governs the trial court. Zaman v. Felton, 219 N.J. 199, 216 (2014). A party seeking summary judgment must show "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." Rule 4:46-2(c). We determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. A trial court must grant summary judgment only "when the evidence 'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
Mindful of this standard of review, we will first address the motion judge's decision to exclude from consideration Hasloecher's notarized statement. The methods for presenting material outside the record in a motion for summary judgment are prescribed by Rule 4:46-2. Sellers v. Schonfeld, 270 N.J. Super. 424, 427 (App. Div. 1993). "One of those methods is by use of an affidavit." Ibid. Where the submission is by affidavit, it must be "made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify." R. 1:6-6.
"Thus, if the allegations of pleadings are to be pierced for summary judgment purposes, the affidavits in support are limited to the affiant's personal knowledge of such facts as he is competent to testify to and as are admissible in evidence." Schonfeld, supra, 270 N.J. Super. at 427; (citing Pressler, Current N.J. Court Rules, comment on R. 1:6-6 (1994); McCormick on Evidence § 10 (Strong ed., 4th ed. 1992)).
The New Jersey Judiciary website provides the following sample form affidavit:
Sample form of affidavit, https://www.judiciary.state.nj.us/supreme/affidavit.pdf (last visited January 18, 2015).
Whenever you have to file an affidavit, you should follow this format. You can, however, use the "certification" language found in the Proof of Mailing form instead of having your oath taken before a Notary Public or an Attorney at Law.The sample affidavit form suggests that the affiant use the following language:
[Affiant's name], being of full age, on [his or her] oath, deposes and says:
1. I am the [movant, petitioner, appellant, etc.] in the above matter.
2. [You then set forth your sworn statements in numbered paragraph form. Remember you are swearing under oath that the information is true.]
3. __________The certification language in the proof of mailing form reads, "I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment."
Sworn to and subscribed
/s/_________
[Your
Signature]
before me this __________
day of __________,
20 ___.
Sample proof of mailing, https://www.judiciary.state.nj.us/supreme/mail.pdf (Last visited January 18, 2015).
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Here, the letter submitted by Hasloecher stated: "I affirm that the following explanation of the event that occurred on July 2, 2010 is the truth under penalty of perjury." Hasloecher provides a first-person account of the event she witnessed on July 2, 2010. This statement concludes with a notarized seal attesting to the identity of the author. We are satisfied that the content of Hasloecher's letter is the functional equivalent of the required format.
Our Supreme Court has made clear that "when the testimony in question is 'pivotal' to the case of the party offering the testimony, a court should seek to avoid exclusion where possible." Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000). Here, the motion judge erred in failing to consider Hasloecher's notarized letter as competent evidence under Rule 4:46-2 to dispute a pivotal issue of material fact, to wit, the cause of plaintiff's fall on July 2, 2010.
Finally, we address the motion judge's ruling that plaintiff was required to present expert testimony to establish the standard of care applicable to defendant under the circumstances of this case. Specifically, the judge held that the procedures used by supermarkets to restock produce was outside the ken of the average juror. We disagree.
As recently reaffirmed by our Supreme Court, "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." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013)). Plaintiff has the burden of proving all four of these elements. Ibid.
Ordinarily, a plaintiff is not required to establish the applicable standard of care because "a layperson's common knowledge is sufficient to permit a jury to find that the duty of care has been breached without the aid of an expert's opinion." Id. at 407 (quoting Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)). In those cases, "[i]t is sufficient for [a] plaintiff to show what the defendant did and what the circumstances were. The applicable standard of conduct is then supplied by the jury[,] which is competent to determine what precautions a reasonably prudent man in the position of the defendant would have taken." Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961).
As the Court noted in Davis, supra, cases requiring expert testimony to establish the applicable standard of care often involve esoteric issues requiring specialized professional training or experience, such as professional malpractice actions, the responsibility of real estate brokers conducting open house tours, procedures for the safe conduct of funeral processions, application of skydiving guidelines, and the conduct of karate teachers. 219 N.J. at 407-08. N.J.R.E. 702 also provides for expert testimony in areas involving "scientific, technical, or other specialized knowledge [to] assist the trier of fact to understand the evidence or to determine a fact in issue."
Because this is defendant's motion for summary judgment, we must accept plaintiff's version of how the accident occurred as described by Hasloecher. We must also place the event in its proper context. That is, the employee was aware the store was particularly busy with customers purchasing produce for the upcoming July 4th holiday. Under these circumstances, it is within the common sense experience of the average juror to determine whether Saez's decision to place a restocking cart immediately behind plaintiff, without first letting him know the cart was there, negligently created a dangerous condition and breached defendant's duty to provide a safe environment to its customers as business invitees. Walters v. Y.M.C.A., 437 N.J. Super. 111, 117 (2014).
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION