LOUISE HOCKMAN VS. BURRELLYS LIMITED LIABILITY COMPANY (L-0365-14, MIDDLESEX COUNTY AND STATEWIDE)
A-3731-15T2
| N.J. Super. Ct. App. Div. | Oct 2, 2017Background
- Hockman slipped exiting a Tastee Sub shop and severely injured her right ankle; she felt her pant leg wet though she did not see liquid on the floor.
- Plaintiff sued the store operator Burrellys, LLC and owner Nicole Burrell; landlord Caren Frederick was also a defendant. Jury awarded plaintiff $1,280,081.67; verdict allocated 80% fault to Burrellys and 20% to plaintiff.
- Pretrial, the court granted summary judgment for landlord Frederick (lease placed maintenance duty on tenant) but denied Burrellys’s summary judgment on causation, allowing jury to decide.
- Plaintiff’s liability expert (engineer Dr. Nolte) testified that a liquid caused a hydroplane slip and suggested likely sources (drinks, oils) despite an in limine restriction barring speculation about the liquid’s source. Defense objected but did not secure a curative instruction.
- Trial judge charged both actual/constructive notice and the mode-of-operation theory. Jury found Burrellys negligent. On appeal, the court found errors requiring a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Denial of Burrellys’s summary judgment on causation | Hockman argued wet pant leg and business operation evidence create disputed facts sufficient for jury on causation and inspections | Burrellys argued no evidence the fall was caused by any substance on the floor; plaintiff never identified source | Court: Denial affirmed — genuine factual disputes as to notice/maintenance made summary judgment improper, though mode-of-operation did not apply here |
| Grant of summary judgment to landlord Frederick | Plaintiff argued flooring condition could implicate landlord as responsible for slippery surface | Frederick relied on lease allocating maintenance of leased space to tenant and no notice to landlord | Court: Affirmed — lease placed duty on Burrellys; no evidence landlord breached duty |
| Admission of Dr. Nolte’s testimony identifying source of liquid (net-opinion) | Hockman relied on Nolte’s testimony to link store operations to likely presence of liquid and insufficient inspections/mats | Burrellys argued Nolte’s attribution of source was speculative net opinion with no factual basis | Court: Error — Nolte exceeded in limine limits by speculating about source; admission was plain error and requires new trial |
| Use of mode-of-operation jury charge | Hockman argued self-service and business nature justified mode-of-operation inference (no need to prove notice) | Burrellys argued the shop was not a self-service operation; mode-of-operation inapplicable | Court: Error — mode-of-operation doctrine not applicable to this business; charging it was improper and contributed to need for retrial |
Key Cases Cited
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (trial court summary-judgment standard) (sets NJ standard for evaluating summary judgment in light most favorable to nonmoving party)
- Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245 (mode-of-operation limited to self-service businesses) (explains scope of mode-of-operation doctrine)
- Bozza v. Vornado, Inc., 42 N.J. 355 (mode-of-operation and inference of negligence) (origin of inference and defendant’s burden to rebut)
- Walker v. Costco Wholesale Warehouse, 445 N.J. Super. 111 (App. Div. 2016) (mode-of-operation may be charged when wetness on clothing supports inference even if exact substance not identified)
- Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (premises liability duty and notice) (explains duty to discover and eliminate dangerous conditions)
- Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344 (expert net-opinion rule) (mere unsupported expert conclusions are inadmissible)
- Landrigan v. Celotex Corp., 127 N.J. 404 (requirements for expert opinions) (experts must identify factual bases and reliable methodology)