LOUISE HOCKMAN VS. BURRELLYS LIMITED LIABILITY COMPANY (L-0365-14, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3731-15T2

LOUISE HOCKMAN,

Plaintiff-Respondent,

v.

BURRELLYS LIMITED

LIABILITY COMPANY, and

NICOLE BURRELL,

Defendants-Appellants,

and

CAREN FREDERICK,

Defendant-Respondent.

__________________________________

Argued September 12, 2017 – Decided October 2, 2017

Before Judges Yannotti, Carroll, and Mawla.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Docket No. L-

0365-14.

Tracy L. Frankel argued the cause for

appellants (Farber Brocks & Zane, LLP,

attorneys; Ms. Frankel, on the briefs).

Michael S. Savett argued the cause for

respondent Caren Frederick (Clark & Fox,

attorneys; John M. Clark, on the brief).

Nicholas J. Leonardis argued the cause for

respondent Louise Hockman (Stathis &

Leonardis, LLC, attorneys; Mr. Leonardis and

Randi S. Greenberg, on the brief).

PER CURIAM

Plaintiff Louise Hockman entered a sandwich shop owned and

operated by Nicole Burrell and Burrellys, LLC (collectively

Burrellys). Upon noticing her vehicle was improperly parked she

began to exit the store and allegedly slipped on an unknown liquid,

fell, and severely injured her right leg. A jury trial ensued and

Burrellys was determined eighty-percent liable for plaintiff's

injuries and plaintiff twenty-percent. The jury awarded plaintiff

$1,280,081.67.

Burrellys appeals from the November 20, 2015 denial of summary

judgment; the September 18, 2015 entry of summary judgment in

favor of the landlord, Caren Frederick; the denial of in limine

motions to bar the testimony of plaintiff's liability expert and

certain medical expert testimony and evidence; evidentiary rulings

made during trial; and an order denying a motion for

reconsideration, a new trial and remittitur. We hold the trial

court erred by permitting plaintiff's liability expert to testify

in a speculative manner as to the source of the liquid plaintiff

slipped on, causing the capacity for an unjust result. For these

2 A-3731-15T2

reasons, we affirm in part, reverse in part and remand for a new

trial.

I.

Prior to trial, the court addressed summary judgment motions

by Frederick and Burrellys. On September 18, 2015, the trial

court granted summary judgment in favor of Frederick. On November

20, 2015, the court denied Burrellys's motion for summary judgment,

finding a sufficient material factual dispute regarding the

proximate cause of plaintiff's fall to permit the matter to be

addressed by the jury.

The matter was later tried before a jury. Burrellys addressed

several in limine motions to the trial judge, one of which sought

to exclude the testimony of plaintiff's liability expert Dr. Wayne

Nolte on the grounds of a net opinion. Specifically, Burrellys

challenged Nolte's opinion on the basis he could not opine as to

the source of the liquid plaintiff slipped on. The trial judge

denied the application to bar Nolte's testimony and report, but

restricted Nolte from speculating as to the source of the liquid.

At trial, however, Nolte testified beyond the scope established

in the in limine ruling.

Burrellys also moved in limine to bar medical illustrations

utilized by plaintiff's medical expert, Surender M. Grover, M.D.,

at a de bene esse deposition because the illustrations were

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allegedly exaggerated and thus prejudicial. The trial judge denied

the motion finding that the illustrations were not prejudicial,

but instead an aid to the doctor's testimony.

In addition, Burrellys moved in limine to bar Dr. Grover's

testimony regarding plaintiff's poor future prognosis as

speculative and not within the scope of Dr. Grover's report. The

trial judge denied the motion because Dr. Grover had opined in his

report regarding plaintiff's prognosis and the testimony was not

speculative.

Burrellys also moved to admit statements attributed to

plaintiff in the hospital discharge summary pursuant to N.J.R.E.

803(c)(4). According to the hospital's records, plaintiff

reported that she felt dizzy before the fall. The trial judge

declined to address the motion, noting it was premature because

plaintiff had yet to testify.

II.

The following facts are taken from the trial testimony.

Plaintiff visited Tastee Sub, owned and operated by Burrellys, to

purchase a sandwich. She went up two to three steps and approached

the counter to place her order. After ordering, plaintiff informed

Burrell she was going to make sure her car was parked legally.

Before taking her first step down or reaching the banister,

plaintiff's "feet flew up in the air to where [she] could see

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them." When plaintiff landed, her ankle hurt causing her to reach

for it, at which point she noticed "the very bottom of [her] jeans

. . . [was] wet."

Plaintiff did not see any liquid in the area where she fell,

but she did not have any wetness on her jeans when she entered the

shop. It was undisputed it had not rained or snowed the day of

the incident. Plaintiff's ankle was not bleeding and the only

other liquid present was blood from an injury to the back of her

head as a result of the fall.

Plaintiff was hospitalized and had surgery as a result of her

ankle injury. After the surgery, plaintiff wore a medical walking

boot for several months, attended rehabilitation for over two

months, and began physical therapy. Plaintiff used a walker for

ten months, including when she returned home; required the aid of

a visiting nurse; and had ongoing physical therapy.

Plaintiff testified she still has pain in her ankle, and

experiences swelling when she walks. She stated she is unable to

take walks, go shopping, or perform chores as she did before the

incident. Plaintiff could not drive for two years and when she

resumed driving, could not do so for long distances.

Dr. Grover treated plaintiff at the hospital after her fall

and testified on her behalf. He testified regarding plaintiff's

injury and summarized her ankle fracture as "[p]retty severe."

5 A-3731-15T2

Likewise, Dr. Grover described in detail the surgery he performed.

He said the surgery was required if plaintiff "ever wanted to

walk" and explained it required the placement of hardware into the

bone. He described the surgery as successful.

Dr. Grover testified he continued to care for plaintiff and

discussed her post-operation therapy regimen. He also explained

plaintiff advised she was continuing to experience pain, which

lasted more than a year, for which he recommended another surgery

to remove the hardware in plaintiff's ankle. In addition, Dr.

Grover recommended further surgery because plaintiff's injury was

not healing properly and opined plaintiff's pain would "get worse

and worse in time, where the arthritis will progress and make her

more and more stiff[] and painful." Dr. Grover testified it was

"a bad prognosis." He concluded plaintiff's injury was permanent.

Dr. Andrew Hutter, an orthopedic surgeon, provided expert

testimony for Burrellys. He examined plaintiff in 2015 and

concluded she was "treated appropriately postoperatively" and

there "[d]id not appear [to be] anything unusual in her

postoperative course." Dr. Hutter agreed plaintiff sustained a

fracture dislocation of her right ankle as a result of the February

26, 2012 incident and found she underwent the appropriate treatment

for her injury. He concluded plaintiff reached the maximum medical

improvement for her ankle, but conceded there "was a moderate

6 A-3731-15T2

degree of orthopedic permanency to the right ankle," and it was

possible the pain could get better or worse.

Dr. Nolte, a civil and mechanical engineer, testified as

plaintiff's liability expert. He stated the shop's flooring was

a vinyl composition tile, and opined that it was "an acceptable

floor, good floor." He explained "[t]he type of slip [plaintiff]

experienced is [called] a hydroplane. She was no longer walking

on the . . . tile surface, she was now walking on the liquid that

was free to move over the tile surface, because the tile surface

cannot absorb any liquid."

Nolte opined the operator of the shop has an obligation under

the Uniform Fire Code in New Jersey to keep the means of egress

"in a safe condition at all times," requiring inspection,

maintenance, and warnings when necessary. He found no maintenance

or inspection records. He further stated:

Again, here [is] a sub shop. You have

sandwiches, you have vinegar, you have oil,

you have liquids, soda, water, whatever.

There's a probability of . . . liquid getting

on the floor. So, what do you do to prevent

that, to keep that means of egress in a safe

condition? And here, you know, your standard

procedure is you do inspections, do

maintenance, you put a mat down, you put a

warning sign down. None of that was [done]

here.

He concluded:

7 A-3731-15T2

there was a hazardous condition created, and

that was the lack of safety at the means of

egress. [The store d]idn't employ

maintenance, didn't employ inspection, did not

have a mat, did not have any signs, and yet

it's an area where there's a probability of

liquid being on the floor from the type of

operation that's there.

Burrell testified she was the only employee present at the

time of the incident. She explained when customers entered the

shop, they would order food "[t]o go"; there was no dining area

or place to eat in the shop. She testified the last customer to

enter the shop before plaintiff departed over one-half hour

earlier. Burrell saw plaintiff enter the shop and did not notice

anything on the floor. Burrell did not see plaintiff fall, but

attended to her immediately afterwards and noticed blood coming

from the back of plaintiff's head, prompting her to call 9-1-1 and

place a clean towel under her head. Burrell did not notice any

liquid on the floor.

Burrell testified the shop had a refrigerator containing side

salads, canned soda, and two liter bottles of soda. She stated

that she did not keep maintenance records or records of daily

inspections. She had no recollection of whether she swept the

floor the day of the incident, but if she did not "it would be

because there was not[h]ing on the floor," since she routinely

8 A-3731-15T2

inspected it. Burrell explained if she had seen something on the

floor, she would have cleaned it up immediately.

III.

Following summations, the trial judge instructed the jury,

specifically charging both actual or constructive notice and the

mode-of-operation theories of liability. The jury verdict sheet

required the jury to answer several interrogatories; namely, on

liability whether Burrellys was negligent, and whether Burrellys's

negligence was a proximate cause of plaintiff's accident. The

jury was also asked whether plaintiff was negligent and whether

her negligence was a proximate cause of the accident. The jury

responded in the affirmative to both questions and was then

required to assign to the parties percentages of responsibility

for plaintiff's fall and injuries. The jury found Burrellys

eighty-percent and plaintiff twenty-percent liable. The jury

awarded plaintiff damages of $1,200,000 for pain and suffering and

all of her medical expenses resulting from the incident totaling

$80,081.67.

Burrellys thereafter filed a motion for reconsideration and

a motion for remittitur, both of which were denied. The trial

court molded the jury award to reflect Burrellys's eighty-percent

share and a Medicare lien. After adding interest, attorney's fees

9 A-3731-15T2

and compensation for plaintiff's witnesses, final judgment was

entered on April 19, 2016, in the amount of $1,035,359.69.

IV.

Burrellys asserts the trial court erred by denying summary

judgment on the issue of causation because plaintiff presented no

evidence she slipped on any substance. Burrellys also contests

the granting of summary judgment to Frederick because plaintiff's

expert asserted the flooring, which was Frederick's

responsibility, was slippery and caused plaintiff's fall. We

disagree with both arguments.

Summary judgment must be granted if the court determines

"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). The court must "consider whether

the competent evidential materials presented, when viewed in the

light most favorable to the non-moving party in consideration of

the applicable evidentiary standard, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor

of the non-moving party." Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 523 (1995). We "review the trial court's grant of

summary judgment de novo under the same standard as the trial

court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.

of Pittsburgh, 224 N.J. 189, 199 (2016).

10 A-3731-15T2

The following facts were presented to the trial court on

summary judgment regarding causation. Plaintiff gave a deposition

stating it was not raining on the day of the incident. She did

not notice any substances on the floor when she entered the shop.

She testified she believed she slipped on "some kind of liquid"

because, when she landed, her "pant leg felt wet." She testified

she never saw liquid on the floor but "felt [it on her] pants."

Burrell testified at her deposition that she was the only

person working at the shop the day of the incident, and when

plaintiff entered the shop, there were no other customers present.

Burrell testified the last customer departed more than thirty

minutes before plaintiff arrived. She stated if a customer asked

for condiments, they would be put on the sandwich and then each

sandwich wrapped and given to the customer. After plaintiff's

fall, Burrell testified she saw nothing else on the floor other

than plaintiff's blood. She did not touch plaintiff's clothes to

see if they were wet. She stated she usually swept during the

afternoon and mopped at the end of the day, unless it was necessary

to mop earlier.

The motion judge also had Nolte's expert report, which stated:

The sub shop sold drinks and had a self-

service refrigeration unit nearby the entrance

door. Again, mats were not in place at the

entrance to absorb any liquid that may come

from or be spilled from one of the drinks sold

11 A-3731-15T2

to a customer. Caren Frederick stated that

the building did not contain a roof leak at

the time. The reasonable source of liquid on

the floor was from a customer who purchased a

drink.

On November 20, 2015, the trial court issued an oral decision

denying summary judgment stating:

Plaintiff demonstrated the nature of the

Tastee Sub Shop business as a delicatessen

which permitted patrons to walk around the

common areas with drinks, . . . and did not

restrict the carrying of or consumption of

food and drink.

In cases that have previously applied the

[mode-of-operation] doctrine, the Plaintiffs

weren't able to specifically identify the

exact source of the slipping hazard.

. . . .

These cases made clear that Plaintiffs need

not specifically identify the source of the

hazard in order to obtain the benefit of the

mode of operation charge. It's enough that

Plaintiff produced sufficient proof

permitting the Jury to find the hazard more

than likely arose on the merchant's mode of

operation.

Plaintiff produced evidence that a source of

the liquid on the floor could potentially be

the self-service refrigeration unit located

next to the means of egress of the store by

the stairway.

Plaintiff's expert opines that the customers

carrying drinks out of the refrigerator and

shop provide a reasonable opportunity for

liquid to get on the floor in the area of the

customer.

12 A-3731-15T2

Further, several . . . safety councils . . .

note the good practice of maintaining the

premises by equipping floors with mats to

absorb liquid.

. . . .

. . . [T]he record contains conflicting

accounts of the events that transpired before

and after Plaintiff's fall. First, the amount

of time that the . . . alleged clear liquid

remained on the ground is unknown.

Plaintiff testified that she did not see the

liquid on the floor before her fall. After

the fall, Plaintiff looked at her clothing and

found that the bottom of her pant leg was

wet. . . .

. . . .

Also, at issue is whether Defendant's

maintenance of the store was

unreasonable. . . .

. . . .

Additionally, an issue[] remains regarding the

reasonableness of Defendant's decision not to

use floor mats. . . .

. . . .

[A]ny questions pertaining to the

reasonableness of [d]efendant's] actions or

inactions should be left for the Jury.

"[A] negligence cause of action requires the establishment

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

(3) actual and proximate causation, and (4) damages." Jersey

13 A-3731-15T2

Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594

(2013).

Business owners owe to invitees a duty of

reasonable or due care to provide a safe

environment for doing that which is within the

scope of the invitation. The duty of due care

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. Ordinarily an injured

plaintiff asserting a breach of that duty must

prove, as an element of the cause of action,

that the defendant had actual or constructive

knowledge of the dangerous condition that

caused the accident.

[Nisivoccia v. Glass Gardens, Inc., 175 N.J.

559, 563 (2003) (citations omitted).]

However, under the mode-of-operation doctrine a plaintiff is

relieved of proving actual or constructive notice where, "as a

matter of probability, a dangerous condition is likely to occur

as the result of the nature of the business, the property's

condition, or a demonstrable pattern of conduct or incidents."

Ibid. In such a case, the plaintiff is afforded "an inference of

negligence, imposing on the defendant the obligation to come

forward with rebutting proof that it had taken prudent and

reasonable steps to avoid the potential hazard." Id. at 563-64;

accord Bozza v. Vornado, Inc., 42 N.J. 355, 360 (1964)

("[D]efendant may then negate the inference by submitting evidence

of due care.").

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As noted by our Supreme Court in Prioleau v. Kentucky Fried

Chicken, Inc., 223 N.J. 245, 260 (2015), "in all of its prior

mode-of-operation cases, th[e] Court has emphasized the self-

service nature of the defendant's business."

[T]he mode-of-operation doctrine has never

been expanded beyond the self-service setting,

in which customers independently handle

merchandise without the assistance of

employees or may come into direct contact with

product displays, shelving, packaging, and

other aspects of the facility that may present

a risk. The distinction drawn by these cases

is sensible and practical. When a business

permits its customers to handle products and

equipment, unsupervised by employees, it

increases the risk that a dangerous condition

will go undetected and that patrons will be

injured. Thus, the mode-of-operation rule is

not a general rule of premises liability, but

a special application of foreseeability

principles in recognition of the extraordinary

risks that arise when a defendant chooses a

customer self-service business model.

[Id. at 262.]

In Craggan v. IKEA U.S., 332 N.J. Super. 53, 62 (App. Div. 2000),

we stated "[t]he unifying factor, however, is a mode of operation

designed to allow the patron to select and remove the merchandise

from the premises without intervention from any employee of the

storekeeper."

We have found the mode-of-operation doctrine to apply even

when plaintiff cannot definitively identify the substance that

caused the fall. In Walker v. Costco Wholesale Warehouse, 445

15 A-3731-15T2

N.J. Super. 111, 114 (App. Div. 2016), the plaintiff was shopping

at the defendant's warehouse store and passed a vendor offering

free samples of cheesecake in small paper cups. Plaintiff then

slipped on a substance on the floor, which he initially perceived

as having a yogurt-like appearance. Ibid. Plaintiff also noted

"his jogging pants were 'wet' and 'smeared' from the substance,

although he 'couldn't tell [the jury] exactly what it was.'" Ibid.

(alteration in original). The panel in Walker stated:

We recognize that plaintiff was unable to

identify with precision the substance on the

floor that allegedly caused him to slip.

There is a plausible basis, however, to

believe that the white substance could have

been cheesecake, which may well have become

softer, creamier, and more "yogurt-like" in

appearance after being displayed in sample

cups for some unspecified time at room

temperature. Plaintiff's inability to

describe the substance in more exact terms is

understandable given the sudden and traumatic

nature of his fall. Of course, he may well

have been mistaken in his description and the

substance could have come from another source,

but that is a factual matter for the jury to

evaluate.

[Id. at 126.]

The wetness of the plaintiff's pant leg in Walker was enough

to infer he had slipped on a substance causing his fall. The

panel concluded:

The trial court failed to give plaintiff the

benefit of these reasonable inferences when

it declined to allow the jurors as fact-

16 A-3731-15T2

finders to consider whether the factual

predicates for mode-of-operation liability

were proven here. Although plaintiff has not

provided a particularly compelling factual

basis to support his mode-of-operation

argument, he presented enough evidence to at

least justify the model charge being issued.

The jurors should have been allowed to

evaluate whether he met his threshold burden

of proving the necessary factual nexus to a

defendant's self-service activity. There also

remain important factual questions about

whether the substance was actually observed

on the floor, whether [defendant]'s

inspections were adequate, and whether the

locations and hours of the demonstrators'

activities actually coincide with plaintiff's

theory of liability.

[Id. at 127.]

We are convinced that the motion judge erred by finding that

the mode-of-operation doctrine applies in this case. Plaintiff

did not present sufficient evidence to show that the doctrine

applied. As Burrell explained, sandwiches were prepared and

wrapped for the customers. The shop had a refrigerator, which

contained salads and beverages in sealed containers. There was

no evidence that the dangerous condition in this case was due to

the customers' handling of the items in the refrigerator. The

facts did not present a situation where the customers' handling

of the items increased the risk that a dangerous condition could

go undetected and patrons would be injured. Moreover, the facts

in this case are significantly different from those in Walker

17 A-3731-15T2

because here there was no ready source of the alleged liquid or

substance found on plaintiff's clothing similar to any substance

being dispensed nearby.

Nevertheless, the motion judge did not err by denying

Burrellys's motion for summary judgment because there were genuine

issues of material fact as to whether Burrellys had actual or

constructive notice of the alleged dangerous condition. Plaintiff

presented evidence allegedly showing that Burrellys failed to

adequately inspect and maintain the floor in the shop, and did not

use mats near the steps where plaintiff fell. Plaintiff also

presented expert testimony from her liability expert Nolte on this

issue.

Burrellys further argues that the motion judge erred by

granting summary judgment to Frederick. Again, we disagree.

Burrellys argues "the court below seemed to ignore Mr. Nolte's

reported opinion that the vinyl flooring of the shop was improper

for a sandwich shop."

In his expert report, Nolte stated:

The vinyl composition tile floor inside the

sub shop was not going to absorb liquid. The

liquid was going to sit on top of the floor

and create a hydroplane for anyone who came

in contact with it. The mechanics of the fall

as described by Louise Hockman were consistent

with her foot or feet hydroplaning on the

floor surface due to a liquid.

18 A-3731-15T2

The trial court correctly decided that there was no genuine

issue of material fact regarding Frederick's alleged liability,

and Frederick was entitled to judgment as a matter of law. Section

10(e) of the store lease between Frederick and Burrellys states,

in pertinent part: "The Tenant shall . . . [k]eep the store and

any other part of the Building used by the Tenant as clean and

safe as possible."

Furthermore, Section 11 of the lease states: "The landlord

shall: (a) Maintain the common areas of the Building in a clean

condition. (b) Make any necessary repair to the Store and vital

facilities within a reasonable time after notice by the Tenant.

(c) Maintain the elevators in the Building, if any." In addition,

Section 15 provides, in pertinent part: "The Landlord is not liable

for loss, injury, or damage to any person or property unless it

is due to the Landlord's act or neglect."

Therefore, the lease placed the duty to maintain the leased

space in a safe condition on Burrellys. Frederick only assumed a

duty to maintain the common areas and to make repairs upon notice

from Burrellys. The area where plaintiff was injured was not a

common area, and Frederick was never notified of a condition

needing repair. Accordingly, under the lease, the duty to keep

the area where plaintiff was injured in a safe condition was solely

Burrellys's.

19 A-3731-15T2

Although Burrellys disclaims Nolte's report respecting its

own liability, the report does not present either a duty, a breach

of it by Frederick, or a material dispute in fact as to either

duty or breach, which would warrant denial of Frederick's motion

for summary judgment. For these reasons, the motion judge

correctly decided Frederick was entitled to summary judgment.

V.

As noted in the preceding section, the trial judge erred by

charging the jury on mode-of-operation. By doing so, the jury

could find negligence without finding Burrellys had actual or

constructive notice of the alleged dangerous condition. Under the

circumstances of this case, the mode-of-operation charge was

improper and the error requires a new trial.

VI.

Before trial commenced, Burrellys made in limine motions to

exclude Nolte's expert report and testimony as a net opinion. The

trial court did not bar Nolte's report, but limited his testimony

regarding the source of the liquid on which plaintiff slipped. We

hold the admission of testimony by Nolte regarding the source of

the liquid exceeded the scope of the in limine determination. The

admission of this improper testimony was clearly capable of

misleading the jury thereby causing an unjust result, and warrants

reversal for a new trial.

20 A-3731-15T2

Burrellys argues the trial court should have barred Nolte's

testimony because his "conclusion that a customer may have taken

a drink from the refrigerator and spilled it causing the liquid

on the floor, which in turn caused plaintiff to slip was 'total

speculation.'" Rather than bar plaintiff's expert on the eve of

trial, the trial judge opted to restrict Nolte's testimony. The

trial judge stated as follows:

[T]he expert, presumably, is basing his

determination that there was a liquid on the

plaintiff's testimony that she felt an area

that was damp. Now, the source of that liquid,

I agree with you, the expert should not

necessarily be able to speculate as to where

it came from. In other words, if [it] probably

came from a customer that purchased a drink.

There's a self-service machine there. That,

I agree, is speculation. But the fact that

there was some type of liquid, whatever it may

be, came from the plaintiff's testimony that

she felt something wet there.

. . . .

[I]t should not come from this expert that it

was soda purchased by a customer, or likely

to be because, quite frankly, you know, that

is sheer speculation.

Nolte did not, however, adhere to this limitation during the

trial. He testified: "[I]t's a sub shop where you're dealing with

oils and . . . vinegar, there's a refrigeration unit not too far

from the entrance where it's self service[.]" This prompted an

objection from defense counsel and the trial judge to warn the

21 A-3731-15T2

testimony was "treading very close to . . . violating the spirit

of the ruling," which was "to prevent this witness from testifying

as to what might be a source." The trial judge continued:

So, now he's talking about all of the things

that it could have come from, which is really

speculation on his part, because there's no

evidence in the record as to where this came

from. Now, we know it's a sub shop, we know

they serve all of these things, and so let the

jury make those calls[.]

Defense counsel asked the court to "instruct the jury to disregard

what [Nolte] just said." Plaintiff's counsel replied: "You want

to highlight the answer? Okay." The court said: "So, what do you

want me to tell them?" Defense counsel replied: "[L]et's move on.

Thanks, Judge."

Nolte continued to imply plaintiff slipped on a liquid and

opined about the potential sources of the liquid. He testified:

"[I]t wasn't until she got near the stairway on her way out that

all of a sudden she encountered a liquid that caused her to slip."

He then suggested a source for the substance: "Again, here [is] a

sub shop. You have sandwiches, you have vinegar, you have oil,

you have liquids, soda, water, whatever. There's a probability

of water – or – I keep saying water, but of liquid getting on the

floor." Nolte later testified: "[I]t's an area where there's a

probability of liquid being on the floor from the type of operation

that's there." When asked whether "the liquid that was on the

22 A-3731-15T2

floor came about from the manner in which Burrellys LLC does their

business," he responded, "that is my opinion."

N.J.R.E. 703 provides:

The facts or data in the particular case upon

which an expert bases an opinion or inference

may be those perceived by or made known to the

expert at or before the hearing. If of a type

reasonably relied upon by experts in the

particular field in forming opinions or

inferences upon the subject, the facts or data

need not be admissible in evidence.

The net opinion rule, a corollary of N.J.R.E. 703, is more

or less "a prohibition against speculative testimony." Grzanka

v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997). "That is,

an expert's bare opinion that has no support in factual evidence

or similar data is a mere net opinion which is not admissible and

may not be considered." Pomerantz Paper Corp. v. New Cmty. Corp.,

207 N.J. 344, 372 (2011).

"[E]xperts generally[] must be able to identify the factual

bases for their conclusions, explain their methodology, and

demonstrate that both the factual bases and the methodology are

scientifically reliable." Landrigan v. Celotex Corp., 127 N.J.

404, 417 (1992). Thus, "expert opinion [must] be grounded in

'"facts or data derived from (1) the expert's personal

observations, or (2) evidence admitted at the trial, or (3) data

relied upon by the expert which is not necessarily admissible in

23 A-3731-15T2

evidence but which is the type of data normally relied upon by

experts."'" Townsend v. Pierce, 221 N.J. 36, 53 (2015)(citation

omitted).

Here, there was no evidence to permit Nolte to suggest the

source of the liquid, which caused plaintiff's fall. Therefore,

the trial court's in limine ruling limiting his testimony was

correct. However, when Nolte ran afoul of the trial judge's in

limine instruction, defense counsel objected only once,

contemplated a curative instruction, and declined to pursue it.

Notwithstanding counsel's failure to strike Nolte's improper

testimony and seek a curative instruction, the admission of Nolte's

testimony was a clear violation of the judge's in limine ruling.

The admission of this improper testimony constituted plain error,

that is, and error "clearly capable of producing an unjust result."

R. 2:10-2.

Nolte was the only engineering expert in this case. He not

only identified the substance that plaintiff slipped on, he also

identified the potential source of the substance. As the judge

ruled, there was no evidence to support these statements. The

jury was more likely to rely upon these statements because they

were made by a person qualified as an expert. We therefore

conclude that the improper admission of this trial testimony

requires reversal of the judgment and a new trial.

24 A-3731-15T2

VII.

On appeal, Burrellys also argues: (1) the court erred by

allowing plaintiff to use certain medical illustrations prepared

by Dr. Grover; (2) the court erred by refusing to allow the use

of statements attributed to plaintiff in the hospital discharge

summary; (3) a new trial is required because plaintiff's counsel

made certain allegedly prejudicial comments in his opening and

summation; (4) the court erred by denying its motion for a directed

verdict; and (5) the jury's award was excessive. In view of our

decision reversing the judgment and remanding the matter for a new

trial due to the erroneous charge of the mode-of-operation doctrine

and the admission of Nolte's improper testimony, we need not

address these arguments.

Affirmed in part, reversed in part, and remanded for a new

trial. We do not retain jurisdiction.

25 A-3731-15T2