PATRICIA K. RIEGER VS. ANN, INC., ETC.(L-0557-14, GLOUCESTER 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NOT FOR PUBLICATION WITHOUT THE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-4172-15T1

PATRICIA K. RIEGER and
ERIC RIEGER,

Plaintiffs-Appellants,

v.

ANN, INC. d/b/a LOFT,

Defendant-Respondent.
________________________________

Argued September 25, 2017 – Decided October 12, 2017

Before Judges Sabatino and Rose.

On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Docket No.
L-0557-14.

Devesh Taskar argued the cause for appellants
(Law Offices of Robert I. Segal, attorneys;
Maria Detitto, on the brief).

Jaunice M. Canning argued the cause for
respondent (Law Offices of William E. Staehle,
attorneys; Ms. Canning, on the brief).

PER CURIAM
 Plaintiff Patricia K. Reiger1 appeals from the trial court's

order granting summary judgment to defendant Ann, Inc. d/b/a Loft

in this negligence action. We affirm.

I.

We recite the key facts from the summary judgment record. In

so doing, we view all facts in a light most favorable to plaintiff.

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014).

On May 15, 2013, plaintiff was shopping at defendant's retail

store in Marlton. While trying on a scarf in the common dressing

area of the store, and backing away from a mirror, plaintiff

tripped and fell over a platform behind her that caused a mannequin

displayed on the platform to strike plaintiff, injuring her

shoulder and elbow.

The store's manager, Marisa Fiorentino, testified at her

deposition that the platform was rectangular, approximately five

inches high, and large enough to hold two mannequins. Fiorentino

drew a diagram depicting the platform and location of the fully-

dressed mannequins, each of which was taller than five feet, five

inches. A clothing bar was located on each side of the platform

display, creating a "store set" from which Fiorentino hung

1
Since Eric Reiger is a co-plaintiff in this case only because of
his per quod claim deriving from his spouse's injury, references
to "plaintiff" pertain solely to Patricia K. Reiger.

2 A-4172-15T1
merchandise that was not readily selling in the store area. A

three-way mirror was located just across from the platform display.

Shelves containing scarves were located on each side of the mirror.

Private dressing rooms were located on the left and right sides

within the common dressing area.

Plaintiff testified at her deposition that she did not notice

the platform display when she entered the dressing area. At some

point thereafter,2 plaintiff tried on a scarf, viewed herself in

the three-way mirror, but did not see the platform display behind

her in the mirror. While observing her image in the mirror,

plaintiff took a step back for a better view. One of her heels

hit the platform, causing one of the mannequins to fall on her.

There were no eyewitnesses.

Defendant retained John S. Posusney, P.E., an engineering

expert who conducted a site inspection. Defendant served plaintiff

with Posusney's report in which he opined "[plaintiff's] incident

was caused by her failure to maintain a proper lookout in the

direction that she was moving before she fell." Posusney found

the aisle accessway between the mirror and the platform exceeded

the requirements of the applicable building code, and plaintiff's

incident was not caused by a defective condition. Plaintiff

2
Plaintiff was not asked how long she was in the dressing area
prior to her fall.

3 A-4172-15T1
retained an engineering expert who conducted a site inspection.

For reasons not disclosed to the court, plaintiff did not produce

in discovery a report by her expert.

The motion judge granted summary judgment to defendant,

concluding plaintiff failed to demonstrate defendant's placement

of the platform display in the dressing area breached a standard

of care that created a dangerous condition. Specifically, the

judge's decision was based on plaintiff's failure to establish,

through expert engineering testimony, that there was insufficient

space between the platform display and the mirror, or through a

"human factors" witness that defendant's positioning of the

platform display created a "trap" such that plaintiff's focus was

on her image in the mirror, and that she would be inclined to back

up and trip over the platform.

Plaintiff now appeals. She contends the court erred in its

decision because she does not claim defendant violated a building

or other code. Rather, plaintiff contends the platform display

constituted a dangerous condition, and a liability expert is not

necessary for a jury to decide whether defendant breached a duty

of care, or that her injuries were a foreseeable result of

defendant's conduct. In this regard, plaintiff emphasizes

Fiorentino's acknowledgment that customers often step back while

viewing themselves in the three-way mirror.

4 A-4172-15T1
 We review a grant of summary judgment de novo, observing the

same standard as the trial court. Townsend v. Pierre, 221 N.J.

36, 59 (2015). Summary judgment should be granted only if the

record demonstrates 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." R. 4:46-2(c). In determining

whether a summary judgment motion was properly granted, we review

the evidence, drawing "all legitimate inferences from the facts

in favor of the non-moving party." Globe Motor Co. v. Igdalev,

225 N.J. 469, 480 (2016) (citing R. 4:46-2(c)). If no genuine

issue of material fact exists, the inquiry then turns to "whether

the trial court correctly interpreted the law." DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325,

333 (App. Div. 2013) (citations omitted). We review issues of law

de novo and accord no deference to the trial judge's legal

conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Applying these standards, we discern no reason to reverse the

grant of summary judgment.

The elements of a negligence cause of action are well-settled.

"To sustain a cause of action for negligence, a plaintiff must

establish four elements: '(1) a duty of care, (2) a breach of that

duty, (3) proximate cause, and (4) actual damages.'" Townsend,

supra, 221 N.J. at 51 (quoting Polzo v. Cnty of Essex, 196 N.J.

5 A-4172-15T1
569, 584 (2008)). However, "[n]egligence is a fact which must be

shown and which will not be presumed." Long v. Landy, 35 N.J. 44,

54 (1961). "[T]he mere showing of an accident causing the injuries

sued upon is not alone sufficient to authorize an inference of

negligence." Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40

(1951).

Here, the court granted defendant's summary judgment motion

primarily because plaintiff did not present sufficient evidence

to sustain her burden of proving defendant breached a duty of

care. We therefore focus on that element of plaintiff's negligence

claim.

"It is well recognized that the common law imposes a duty of

care on business owners to maintain a safe premises for their

business invitees because the law recognizes that an owner is in

the best position to prevent harm." Stelluti v. Casapenn Enters.,

LLC, 203 N.J. 286, 306 (2010). A proprietor's duty of due care

to a business invitee includes an affirmative duty to inspect the

premises and "requires a business owner to discover and eliminate

dangerous conditions, to maintain the premises in safe condition,

and to avoid creating conditions that would render the premises

unsafe." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563

(2003). "[T]he business entity will not be held liable for injuries

sustained 'so long as [the business] has acted in accordance with

6 A-4172-15T1
the ordinary duty owed to business invitees, including exercise

of care commensurate with the nature of the risk, foreseeability

of injury, and fairness in the circumstances.'" Stelluti, supra,

203 N.J. at 307 (quoting Hojnowski v. Vans Skate Park, 187 N.J.

323, 340-41 (2006)) (alteration in original).

In many instances, a "plaintiff is not required to establish

the applicable standard of care" in a negligence case. Davis,

supra, 219 N.J. at 406 (2014). The plaintiff ordinarily need only

"show what the defendant did and what the circumstances were," and

the jury is competent to supply the applicable standard of care

by "determin[ing] what precautions a reasonably prudent [person]

in the position of the defendant would have taken." Sanzari v.

Rosenfeld, 34 N.J. 128, 134 (1961); see also Davis, supra, 219

N.J. at 406-07. In such non-technical cases, "a layperson's common

knowledge" permits the "jury to find that the duty of care has

been breached without the aid of an expert's opinion." Giantonnio

v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996); see also

Davis, supra, 219 N.J. at 407.

Where, however, a jury lacks the competence to supply the

applicable standard of care, the plaintiff must establish "the

requisite standard" and the defendant's deviation from it by

"present[ing] reliable expert testimony on the subject." Davis,

supra, 219 N.J. at 407 (quoting Giantonnio, supra, 291 N.J. Super.

7 A-4172-15T1
at 42). In determining whether expert testimony is required, "a

court properly considers 'whether the matter to be dealt with is

so esoteric that jurors of common judgment and experience cannot

form a valid judgment as to whether the conduct of the [defendant]

was reasonable.'" Ibid. (quoting Butler v. Acme Mkts., Inc., 89

N.J. 270, 283 (1982) (alteration in original)).

On defendant's motion for summary judgment here, the court

correctly applied these principles and determined plaintiff had

not produced an expert to explain that defendant violated a

standard of care in its placement of the platform display in

proximity to the three-way mirror. We agree. Here, it is

undisputed that defendant's placement of the platform display did

not violate any building code. Indeed, defendant's expert opined

the accessway where plaintiff fell exceeded the municipal code

requirements.

We also find unpersuasive plaintiff's contention that, in

this particular setting, the jury is competent, without expert

testimony, to supply the applicable standard of care based solely

on the testimony in the record. Although Fiorentino testified

that customers generally back up when viewing themselves in a

three-way mirror, we concur with the trial judge that expert

testimony is necessary to establish that placement of the platform

display violated pertinent standards of care to create a tripping

8 A-4172-15T1
hazard. The platform display was not camouflaged nor protruding

into the accessway. Rather, the fully-dressed, life-sized

mannequins were part of a store set, from which customers could

obtain merchandise, in an open area of the common dressing area.

Although plaintiff's act of falling, itself, was not "esoteric,"

the customs and standards for retail store displays and safe

clearance conditions are not part of jurors' common knowledge.

Compare Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (expert

not required to establish dangerous condition of camouflaged

step); Campbell v. Hastings, 348 N.J. Super. 264, 270-71 (App.

Div. 2002) (expert not required to establish danger of unlit sunken

foyer); Berger v. Shapiro, 30 N.J. 89, 101-02 (1959) (expert not

required to explain dangerous condition caused by missing brick

in top step of porch).

Even affording plaintiff, as we must, all reasonable

inferences from the factual record, there is an insufficient

evidential basis here to conclude that defendant acted

unreasonably in its placement of the platform, without the aid of

expert testimony, to establish that an accepted standard of care

was violated.

Having determined that defendant did not owe plaintiff a duty

of care, we need not reach plaintiff's argument that defendant is

liable pursuant to a distracted invitee theory. Model Jury Charge

9 A-4172-15T1
(Civil), 5.20F(12)(c), "Duty Owed - Condition of Premises,

Distraction or Forgetfulness of Invitee" (2017). We agree with

the trial court that the distraction of invitee jury charge is

available only if the jury first determines "defendant was

negligent in permitting the condition to exist." Id. As we have

explained above, however, in the absence of expert testimony

articulating a standard of care, the jury cannot make that

determination here.3

Affirmed.

3
Nor are we persuaded that defendant was liable under the mode-
of-operation doctrine inasmuch as notice is not at issue in this
case, Wollerman v. Grand Union Stores, 47 N.J. 426, 429-30 (1966),
and plaintiff took the scarf from one of the shelving bins next
to the three-way mirror, not off of the mannequin that fell on
her, Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 260
(2015). There is an insufficient nexus between plaintiff's self-
service removal of the scarf from the bin and her subsequent act
of bumping into the platform display. See Arroyo v. Durling
Realty, LLC, 433 N.J. Super. 238, 248 (App. Div. 2013) (regarding
lack of the required nexus).

10 A-4172-15T1