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Expert Needed to Prove Liability for Slip and Fall

By on April 16, 2014 in Blog with 1 Comment

In Turkowski v. Management Resources Systems, Inc., 2014 N.J. Super. Unpub. LEXIS 705  (App.Div. 2014), the plaintiff sued Rack Room Shoes, Inc. for personal injuries resulting from a fall at Rack Room, a retail shoe store. The trial court found that the plaintiff was unable to establish the defendant’s negligence without a liability expert and dismissed her case. This dismissal was upheld on appeal.

The plaintiff, age 77, accompanied her daughter shopping at the shoe store. After entering the store, she asked if she could use the restroom and was directed to the back stockroom where the restroom was located. While walking through the storage area, the plaintiff tripped on or near a metal drain cleanout cover in the floor, causing her to be injured. There was a 3/16th height differential between the cover and the floor, which plaintiff claimed was a dangerous or unsafe condition.

When the store was originally built, Rack Room hired a contractor to build the store. The plaintiff claimed that the area where she fell was not properly constructed.

The plaintiff did retain a liability expert, Wayne F. Nolte, Ph.D, P.E., as her expert. He prepared an expert report and was deposed. Mr. Nolte contended that the drain cover was improperly installed because, based on the architectural plans that show the flooring, it was to be level with the drain. However, in his deposition, he admitted that this variation did not violate any known construction code, regulation, or the Uniform Construction Code. He also conceded that during construction, there are certain deviations from design plans that are permitted.

Following his deposition, the defendant sought a dismissal through summary judgment and asked the court to bar his report and testimony as a net opinion. Because Mr. Nolte did not cite to any industry standards, codes, or regulations that require warning for a 3/16th inch depression in the floor and that his opinion rested solely on the deviation from the architect’s plan, the trial court judge found that this basis was insufficient to establish negligence, was a net opinion, and barred his report.

Without an expert, the trial court found that the plaintiff would be unable to prove her negligence claim against Rack Room. The mere fact that the plaintiff fell is not alone sufficient for an inference of negligence. An expert would be needed to give testimony to jurors as to whether this height differential created a hazard sufficient to constitute an unreasonably dangerous condition.

The Appellate Division upheld the trial judge’s ruling barring Mr. Nolte’s report and testimony. Further, it agreed with the trial judge, that, without expert proof, no reasonable jury could find negligence as to the defendant.

This case demonstrates the need for a plaintiff to produce an expert in a personal injury claim involving a minor defect in flooring, allegedly causing the slip and fall. It also points out that an expert must have an objective basis for an opinion as to the alleged hazard created by that defect and, that even an experienced engineer’s opinion, if only based upon personal experience, may be insufficient to survive a motion to bar the expert’s report and dismiss the lawsuit.   

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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There is 1 Brilliant Comment

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  1. Eric Heiberg says:

    A good expert report will include substantiation of the expert’s opinion. Substantiation can come in the form of supporting codes and/or standards, reference to the literature, or test results that support the expert’s opinion.
    Heiberg Engineering and Forensic Services, LLC 908-852-7898

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