JUNE WOLFF v. BEST BUY STORES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1283-11T3

JUNE WOLFF and JEFFREY WOLFF,

Plaintiffs-Appellants,

v.

BEST BUY STORES,

Defendant-Respondent,

and

TM McMINN TRUST,

Defendant.

_______________________________________________________

November 20, 2012

Argued October 23, 2012 - Decided

Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5000-10.

Carleen M. Steward argued the cause for appellants (Gaylord Popp, attorneys; Lawrence E. Popp, of counsel; Ms. Steward, of counsel and on the brief).

Massimo F. D'Angelo argued the cause for respondent (Braff, Harris & Sukoneck, attorneys; Lawrence M. Berkeley, of counsel; Mr. D'Angelo, on the brief).

PER CURIAM

Plaintiff June Wolff, an employee of Sony Computer Entertainment America, Inc., was injured on July 15, 2008, while on assignment at defendant Best Buy Stores' place of business in Union. In her complaint, plaintiff alleged she fell when she slipped off the lower deck of a display case to reach behind a monitor higher up on the display. She claims defendant was negligent because, among other things, it failed to install pins to hold in place matting on the surface of the lower shelf of the display upon which she stood prior to slipping.

Defendant moved for summary judgment, arguing that plaintiff's injuries were the result of her misuse of the display case, that defendant had no actual or constructive knowledge of the display case's condition, and that plaintiff had not provided a liability expert report during discovery. We conclude that the trial judge erred in determining that plaintiff was obligated to provide an expert report to support the claim that the loose matting on the lower shelf of the display was hazardous and in holding that, as a matter of law, plaintiff's "inappropriate use of the display . . . created the dangerous situation." Consequently, we reverse and remand for trial.

The familiar standard applicable to summary judgment motions requires the motion's denial if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder 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, 540 (1995). In reviewing a trial judge's disposition of a summary judgment motion, we employ the same standard. Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).

We turn to those things that are undisputed or supported by evidential material favorable to plaintiff: (1) plaintiff was lawfully present in defendant's place of business and could be viewed as a business invitee; (2) plaintiff, who is five foot, six inches tall, asserts that she had performed the precise task in the same manner on earlier occasions in the store in question; that is, she had previously -- because of her height -- stood on the bottom shelf of the display case in order to reach behind a monitor installed at a level beyond her reach; (3) the bottom of the shelf had holes for the use of push pins to hold in place the matting resting on top of the shelf; (4) those pins were not in place at the time in question, leaving the matting resting loosely on the shelf; and (5) plaintiff would not have slipped but for the loose matting on the bottom shelf.

Plaintiff argues that, when viewing these facts in a light most favorable to her, "a rational fact finder would rule in [her] favor" (emphasis added). That, however, is not the question. The question is whether a rational fact finder could rule in her favor if the facts outlined above are proven. It is only this latter question that we answer in the affirmative. In reaching that conclusion, we initially reject the notion that plaintiff must offer liability expert testimony -- now barred by her failure to timely supply an expert report -- to prove that defendant should have secured the matting with push pins. The photographs offered in opposition to the motion reveal obvious locations for the insertion of push pins and plaintiff has claimed, and is entitled to our assumption, that they were not in place on the date in question.

Our Supreme Court has made it abundantly clear that there is "no general rule or policy requiring expert testimony as to the standard of care"; instead, the test for determining whether expert testimony is required "is 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 party was reasonable." Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982). See also Phillips v. Gelpke, 190 N.J. 580, 591 (2007); Scully v. Fitzgerald, 179 N.J. 114, 127 (2004). Whether the presence of the pins would have prevented the matting from moving and whether they should have been utilized to prevent the sliding of the matting are not matters beyond the ken of laypersons. The example provided by the Court in Scully is apropos: "[a] jury does not need a fire expert to explain to it the dangers that might follow when a lit cigarette is thrown into a pile of papers or other flammable material." Ibid. Similarly, the jury here will not require instruction from an expert that unsecured matting may slide when stood upon. We, thus, reject the trial judge's holding that the absence of liability expert testimony requires dismissal of plaintiff's complaint.

The judge, however, in granting summary judgment, also ruled as a matter of law on a broader question. That is, the judge held that plaintiff failed to demonstrate the presence of "a hazardous condition." He reasoned that the display unit was "reasonably safe for use as a display," and it was "plaintiff's inappropriate use of the display which created the dangerous situation." To be sure, a fact finder might ultimately come to that conclusion, but that question could not, in these circumstances, be resolved as a matter of law. Plaintiff has asserted that she had previously performed the same task in defendant's place of business in the same manner; from this, she claims it is arguable that defendant would have constructive, if not actual, notice of this particular use of its display that would require the exercise of greater care regarding the securing of the matting on the lower shelf. In addition, a jury could conclude that defendant should have understood that Sony representatives would have an occasional need to access the back of the monitor and that the monitor's height from the floor might lead to the use of the lower shelf in the fashion in question here. Whether defendant had actual or constructive notice of the use of the lower shelf as a step for accessing the monitor is a fact question for the jury to resolve.

In short, defendant has valid and persuasive arguments that plaintiff misused the display shelf or was negligent in failing to seek a step ladder or other assistance from defendant in order to access the monitor that exceeded her reach. But defendant's arguments are not so "one-sided" as to permit summary judgment in defendant's favor on these questions. Brill, supra, 142 N.J. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986). Plaintiff is entitled to have a jury resolve these substantial, disputed questions.