CAMERON SMITH VS. WALMART STORES, INC.(L-126-13, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0792-15T4

CAMERON SMITH,

Plaintiff-Appellant,

v.

WALMART STORES, INC., WAL-MART
STORES EAST, INC., WAL-MART STORES
EAST I, LP, WAL-MART STORES, INC.,
WALMART STORE NUMBER 2569, and
WALMART, INC.,

Defendants-Respondents.
________________________________________________

Submitted December 20, 2016 – Decided July 31, 2017

Before Judges Suter and Guadagno.

On appeal from the Superior Court of New
Jersey, Law Division, Morris County, Docket
No. L-126-13.

James C. DeZao, attorney for appellant.

Cottrell Solensky, P.A., attorneys for
respondents (Edward Solensky, Jr. and Mark
M. Makhail, on the brief).

PER CURIAM

Plaintiff Cameron Smith appeals from a Law Division order

entered on September 23, 2015, denying plaintiff's motion for
reconsideration of an order entered on May 8, 2015, which

granted summary judgment to defendant Wal-Mart Stores, Inc. and

dismissed plaintiff's complaint with prejudice.1

On appeal, plaintiff argues that the motion judge erred in

granting summary judgment without considering evidence of

defendant's failure to exercise reasonable care in inspecting

the premises. Plaintiff also argues that the mode-of-operation

doctrine applies.

On January 19, 2011, at approximately 9:45 p.m., plaintiff

was shopping in a store owned and operated by defendant in

Flanders. Plaintiff testified that it had rained earlier that

day and, as she entered the store, she noticed eight to ten

buckets "strategically" placed to catch dripping rainwater near

the entrance. As plaintiff was walking through the store, she

slipped and fell, landing on her right hip and sustaining

injuries.

Plaintiff was accompanied by her boyfriend, Mark Garofalo,

but he did not take the exact same path through the store.

1
Plaintiff's brief suggests she is appealing from both orders,
however, her notice of appeal indicates she is appealing only
from the September 23, 2015 order. Thus, we consider only the
order designated in the notice of appeal. 1266 Apartment Corp.
v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div.
2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463,
465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)).

2 A-0792-15T4
Plaintiff testified she slipped on "something wet" and when

Garofalo picked her up, her right side where she landed was wet.

When plaintiff returned home, she felt sore and applied ice

to her buttocks and right hip. The following day, plaintiff

went to a hospital where she was diagnosed with a broken coccyx.

Plaintiff filed a complaint seeking damages for personal

injuries, alleging defendant caused a dangerous condition to

exist.

Plaintiff submitted a report by Michael G. Natoli, P.E.,

who concluded that the wetness on the floor at the time of

plaintiff's accident was an unsafe condition and defendant's

failure to mitigate the wetness was the cause of plaintiff's

injury.

After engaging in discovery, defendant moved for summary

judgment, arguing plaintiff failed to establish that defendant

had notice of the condition. Plaintiff opposed the motion

relying on Natoli's report, defendant's answers to

interrogatories, depositions of two of defendant's employees,

and an unpublished 2010 slip and fall case.2

During oral argument on defendant's motion before Judge

Donald S. Coburn, plaintiff's counsel focused on the water

2
Unpublished cases have no precedential value. R. 1:36-3.

3 A-0792-15T4
dripping into the buckets near the entranceway and suggested

that customers entering the store may have "transferred" that

water to the area where plaintiff fell, approximately twenty

feet away. Judge Coburn noted that no evidence supported this

theory and granted the motion to dismiss plaintiff's complaint.

Plaintiff moved for reconsideration and submitted a second

expert report by Alex J. Balian, identified in his report as a

Retail Industry Consultant. Balian found that the maintenance

procedure at defendant's store, requiring hourly floor

inspection and floor sweeping three times per day, did not

change when inclement weather occurred. From this premise,

Balian deduced that defendant's failure to increase the

frequency of inspections and sweeps on January 19, 2011, "leads

to the conclusion that the water where [plaintiff] fell in was

there long enough that it should have been detected or there for

an unreason[able] length of time."

During oral argument, Judge Coburn refused to consider the

Balian report because a new expert report cannot be submitted on

a motion for reconsideration and plaintiff had not explained why

the report could not have been submitted at the summary judgment

motion. Even if he were to consider the report, the judge found

it to be "a blatantly net opinion."

4 A-0792-15T4
 Plaintiff's counsel then raised the mode-of-operation

doctrine for the first time.3 Judge Coburn rejected that

argument finding the mode-of–operation doctrine did not apply to

these facts.

"A motion seeking reconsideration of a prior order is

governed by Rule 4:49-2, which requires the movant to explicitly

identify the grounds for the motion to fit within that 'narrow

corridor' in which reconsideration is appropriate." Palombi v.

Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting

D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

Plaintiff's motion for reconsideration was based on an

expert report which was properly excluded. The mode-of-

operation doctrine was never argued during the motion for

summary judgment and plaintiff's attempt to raise the doctrine

for the first time on the motion for reconsideration was

improper. Moreover, the mode-of-operation doctrine is

inapplicable to the facts in this case.

Affirmed.

3
Plaintiff's counsel initially conceded that she had not argued
the mode-of-operation doctrine, but then stated she believed she
had. Our review of the transcript reveals no mention of the
doctrine.

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