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Plaintiff’s Flooring Expert Report Barred as Net Opinion

By on November 11, 2016 in Negligence with 0 Comments

Plaintiff Elaine Anderocci was shopping in a retail store known as Reed Krakoff, in the Short Hills Mall, when she reached for a handbag and slipped and fell, fracturing her shoulder. Plaintiff claimed that the floor was very slippery, “like a sheet of glass.” In Anderocci v. Coach, Inc., 2016 N.J. Super. Unpub. LEXIS 2343 (App. Div. Oct. 27, 2016), she sued the retail store, claiming it was negligent because the store’s floor was in a dangerous condition.

The plaintiff obtained an expert report from an expert in wood flooring. He never examined the floor but, nevertheless, opined that the slippery condition of the floor was due to the use of excessive water in cleaning it. The defendant damp mopped the floor three times per week. However, there was no indication in the record as to how much water was used. The expert opined that, if too much water is used when this type of floor is mopped, “crowning” occurs due to a moisture imbalance. This imbalance creates a slippery condition.

After the plaintiff fell, two employees allegedly told the plaintiff that “A lot of people slip in this store” and “We all have to wear rubber-soled shoes here.” The employees later denied making these statements when they were deposed.

The defendant store moved for summary judgment, which was granted by the trial judge. The court concluded that the plaintiff’s expert report should be barred as a net opinion. She ruled that the employees’ statement were inadmissible hearsay. Last, even if these alleged statements were considered, they were not enough to prove negligence. The plaintiff appealed this decision, arguing that the issue of liability should have been presented to a jury.

The Appellate Division agreed with the trial court that the plaintiff’s expert report was an inadmissible net opinion. While the expert appeared to be knowledgeable in aspects of wood flooring, his opinions as to what caused plaintiff’s accident were too speculative to be admissible and were not sufficiently grounded upon factual support in the record. Although the expert did cite to NWFA standards in support of his general theory that excessive moisture used in cleaning may cause wood floors to crown, he failed to have any evidence establishing how much water was used when the floor was cleaned. His opinion simply had an inadequate factual basis and was speculative. Hence, the Appellate Division agreed that his testimony should be barred.

The Court disagreed, however, with the trial judge’s opinion that the statements of the two employees were inadmissible hearsay. The statements were admissible as being made by agents of the defendant. Regardless, the Appellate Division found that the employees’ statements, along with the plaintiff’s own testimony that the floor was slippery was insufficient to establish a cause of action for negligence.

The Court found that the evidence was inadequate to show that the defendant acted unreasonably in its maintenance practices or otherwise in failing to safeguard its customers from this alleged dangerous condition. The Court noted that “it is sheer speculation to deduce that defendants’ employees mopped the wood floor in an improper manner.” The plaintiff failed to argue that the defendant should have posted signs to warn customers of a slippery floor. Thus, the Appellate Division upheld the summary judgment as to the defendant, stating that the defendant is “not strictly liable for the condition of the floor without viable proof of negligence.”

This case points out that not all expert reports are admissible. There must be a factual predicate for the expert’s opinions – which did not exist in this case. Some negligence cases will fail without a liability expert opinion. Thus, if the defendant is able to obtain an order barring the plaintiff’s liability expert report, based upon the net opinion rule, that order may be a prelude to a successful defense motion for summary judgment.

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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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