CAPALDI et al v. BJ'S WHOLESALE CLUB, INC.
OPINION. Signed by Judge Noel L. Hillman on 5/21/2020. (dmr)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
VERONICA CAPALDI and WILSON
BJ’S WHOLESALE CLUB, INC.;
LBW VINELAND, LLC; ABC INC.
(1-5); XYZ CORP. (1-5); and
JONE DOE (1-5),
DANIEL E. ROSNER
ROSNER LAW OFFICES, P.C.
311 W. LANDIS AVENUE
VINELAND, NEW JERSEY 08360
Counsel for Plaintiffs.
SHAHENAZ Y. YATES
THE CHARTWELL LAW OFFICES LLP
130 NORTH 18TH STREET
PHILADELPHIA, PENNSYLVANIA 19103
JOHN MICHAEL WUTZ
THE CHARTWELL LAW OFFICES LLP
130 NORTH 18TH STREET
PHILADELPHIA, PENNSYLVANIA 19103
Counsel for Defendant.
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HILLMAN, District Judge
This slip-and-fall action comes before the Court on two
motions filed by BJ’s Wholesale Club, Inc. (“Defendant”). 1
First, Defendant moves for summary judgment (ECF No. 23).
Second, Defendant moves in limine to preclude the expert
testimony of an engineering expert retained by husband and wife
Veronica Capaldi (“Mrs. Capaldi”) and Vincent Capaldi (“Mr.
Capaldi”) (collectively, “Plaintiffs”).
Plaintiffs oppose both motions.
(ECF No. 24).
For the reasons that follow,
the Court will deny Defendant’s motion for summary judgment and
will deny, without prejudice, Defendant’s in limine motion.
The Court takes its facts from the statements of undisputed
material fact submitted by each party pursuant to Local Civil
The Court notes relevant disputes where appropriate.
On December 31, 2015, Plaintiffs visited a BJ’s Wholesale
Club located in Vineland, New Jersey.
(ECF No. 23 (“Def. SOMF”)
After obtaining a shopping cart, Plaintiffs entered the
store and began shopping, Mr. Capaldi pushing the shopping cart
and Mrs. Capaldi by his side.
(Def. SOMF at ¶4).
LBW Vineland, LLC, the other named defendant in this matter,
was voluntarily dismissed by the parties on July 16, 2018. (ECF
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thirty minutes after entering the store, Plaintiffs turned down
an aisle in search of peanut butter.
(Def. SOMF at ¶¶5, 9-10).
The aisle was clear of noticeable encumbrances; Plaintiffs
testified there were no other shopping carts in the aisle, and
they did not recall anyone else being in front of them.
SOMF at ¶¶11-12).
As Plaintiffs were perusing the shelves, Mrs.
Capaldi slipped and fell on a slick substance.
(Def. SOMF at
While neither Plaintiff noticed anything unusual about the
floor as they approached the area where the fall occurred, after
Mrs. Capaldi fell, she noticed a pink yogurt-like substance on
the ground underneath her and on her clothing.
(Def. SOMF at
¶¶14-18, 30, 32-33; ECF No. 31 (“Pl. SOMF”) at ¶¶16-18).
Plaintiffs did not observe any empty containers in the immediate
vicinity and could not otherwise immediately identify where the
substance came from.
(Def. SOMF at ¶¶19-21, 34-35; Pl. SOMF at
A short time later, however, Mr. Capaldi
noticed an unaccompanied cart in an intersecting aisle that
appeared to be leaking the same pink yogurt.
¶¶21-25; Pl. SOMF at ¶¶21-25).
(Def. SOMF at
Plaintiffs did not notice any
trail of yogurt from the cart from which it was leaking to the
location of Mrs. Capaldi’s fall.
(Def. SOMF at ¶40).
Nonetheless, the store manager on duty at the time found a
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box of Wag-gurt – a frozen yogurt for dogs – in the nearby cart
Mr. Capaldi identified.
(Def. SOMF at ¶¶41-44, 47; Pl. SOMF at
It appeared to Defendant’s employees, as
reflected in contemporaneous store notes, that this was the same
yogurt-like substance on which Mrs. Capaldi slipped and fell.
(ECF No. 31 at 50).
As a result of the fall, Mrs. Capaldi
suffered relatively severe injuries requiring surgical
Plaintiff retained the services of an expert engineer,
Scott D. Moore, PE (“Moore”).
Moore inspected the floor where
Plaintiff fell and conducted a melting test on a similar product
to determine how long such a product would have to be out of a
freezer before melting and causing a puddle of the type
Plaintiff slipped on.
See (ECF No. 24-9 (“Moore Report”) at 10-
Moore concluded that it would take “more than seven hours
for the product to melt and drip out of the box[.]”
Report at 16).
On June 14, 2018, Defendant removed this action from the
Superior Court of New Jersey to this Court.
On September 16,
2019, Defendant filed its motion for summary judgment and motion
in limine to preclude Moore’s testimony.
These motions have
been fully briefed and are ripe for adjudication.
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Subject Matter Jurisdiction
This Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. § 1332.
Legal Standard – Motion To Preclude Expert Testimony
The admissibility of expert testimony is governed by
Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
Rule 702 provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
the expert’s scientific, technical, or
other specialized knowledge will help the
trier of fact to understand the evidence
or to determine a fact in issue;
the testimony is
facts or data;
the testimony is the product of reliable
principles and methods; and
the expert has reliably applied the
principles and methods to the facts of
Fed. R. Evid. 702.
The Third Circuit has described the
requirements of Federal Rule of Evidence 702 as a “trilogy of
restrictions on expert testimony: qualification, reliability and
Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir.
2003) (quoting Schneider ex rel. Estate of Schneider v. Fried,
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320 F.3d 396, 405 (3d Cir. 2003)).
“[T]he district court acts
as a gatekeeper, preventing opinion testimony that does not meet
the requirements of qualification, reliability and fit from
reaching the jury.”
Schneider, 320 F.3d at 404.
offering the expert testimony bears the burden of establishing
the existence of each factor by a preponderance of the
Raritan Baykeeper, Inc. v. NL Indus., No. 09-4117,
2017 WL 3568401, at *2 (D.N.J. Aug. 16, 2017).
Defendant’s Motion To Preclude Moore’s Testimony Will
Be Denied Without Prejudice
Unfortunately, the Court begins its analysis of Defendant’s
motion to preclude Moore’s testimony not with a discussion of
the merits of that motion, but compelled to note the length of
Defendant’s brief, some eighty-three (83) pages.
Rule 7.2(b) limits briefs to forty (40) pages.
greater length will only be accepted if leave of court is sought
L. Civ. R. 7.2(b).
No such leave has been sought
Courts may disregard or strike overlength briefs.
v. Pratt, No. 19-273, 2020 U.S. Dist. LEXIS 26815, *5, n.7
(D.N.J. Feb. 14, 2020); Panarello v. City of Vineland, No. 124165, 2016 U.S. Dist. LEXIS 87907, *18 (D.N.J. July 7, 2016)
(finding the Court could “disregard Plaintiffs’ Motion for
failure to comply with the basic rules of this District.”).
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This Court, however, has exercised great restraint in imposing
such a sanction, reserving it for only the most egregious
violations of the Local Civil Rules.
See Fisher, 2020 U.S.
Dist. LEXIS 26815, at *5, n.7.
Begrudgingly, this Court finds Defendant’s 83-page brief
obviously violative of the length limitations imposed by Local
Civil Rule 7.2 and finds further that accepting it as filed
would work a great disservice to the spirt of that rule.
other hand, permanently striking Defendant’s motion or
disregarding it appears too stern a sanction to apply under the
Instead, the Court finds the proper remedy is to
deny Defendant’s motion, without prejudice, compelling Defendant
to reconsider its arguments and shorten them to a length
permissible under Local Civil Rule 7.2.
Such a solution
appropriately sanctions Defendant for its violation of Local
Civil Rule 7.2 while also preserving for Defendant the ability
to advance its argument on the merits in a rule-compliant
Defendant must, however, understand that further non-
compliance with Local Civil Rule 7.2 may result in its motions
being struck from the record.
Because the Court finds it need
not decide the admissibility of Moore’s opinions prior to
resolving Defendant’s summary judgment motion, the Court turns
to that motion next.
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Legal Standard – Summary Judgment
Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477
U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
(citing Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
A fact is
“material” if, under the governing substantive law, a dispute
about the fact might affect the outcome of the suit.
considering a motion for summary judgment, a district court may
not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence ‘is to be
believed and all justifiable inferences are to be drawn in his
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
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Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact[.]”).
Once the moving party
has met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is a
genuine issue for trial.
Celotex, 477 U.S. at 324.
opposing summary judgment ‘may not rest upon the mere
allegations or denials of the . . . pleading[s].’”
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
withstand a properly supported motion for summary judgment, the
nonmoving party must identify specific facts and affirmative
evidence that contradict those offered by the moving party.
Anderson, 477 U.S. at 257.
Analysis – Summary Judgment
Plaintiffs’ complaint contains claims for negligence and
loss of consortium.
(ECF No. 1-3 at 12-16).
summary judgment is appropriate because Plaintiffs cannot
establish Defendant had actual or constructive notice of any
Plaintiffs argue, in the first instance,
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that Defendant had constructive notice of the yogurt on the
Alternatively, Plaintiffs argue that the mode-of-
operation doctrine applies, alleviating Plaintiffs’ burden of
having to establish Defendant had constructive notice of the
A. A Jury Could Find That Defendant Had Constructive
Notice of The Yogurt On The Floor
“In New Jersey, . . . it is widely accepted that 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.”
Tractor Supply Co., No. 16-47, 2018 WL 324717, at *4 (D.N.J.
Jan. 8, 2018), appeal dismissed, No. 18-1265, 2018 WL 3933746
(3d Cir. Apr. 23, 2018) (quoting Jersey Cent. Power & Light Co.
v. Melcar Util. Co., 59 A.3d 561, 571 (N.J. 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.”
Senisch, 2018 WL 324717,
at *5 (quoting Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314,
316 (N.J. 2003)).
“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.”
Nisivoccia, 818 A.2d at 316).
An injured plaintiff asserting a
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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.”
(quoting Nisivoccia, 818 A.2d at 316).
A defendant has constructive notice of a dangerous
condition when it exists “for such a length of time as
reasonably to have resulted in knowledge and correction had the
defendant been reasonably diligent.”
Troupe v. Burlington Coat
Factory Warehouse Corp., 129 A.3d 1111, 1114 (N.J. Super. Ct.
App. Div. 2016) (quoting Parmenter v. Jarvis Drug Stores, Inc.,
138 A.2d 548, 550 (N.J. Super. Ct. App. Div. 1957)).
Constructive notice can be inferred in various ways, including
the characteristics of the dangerous condition giving rise to
Id. (citing Tua v. Modern Homes, Inc., 165 A.2d
790, 795 (N.J. Super. Ct. App. Div. 1960)) (finding constructive
notice where substance causing a patron to fall appeared dried
onto the floor).
Additionally, a plaintiff may present
eyewitness testimony regarding the dangerous condition to
establish the length of time it was present.
Grzanka v. Pfeifer, 694 A.2d 295, 300-01 (N.J. Super. Ct. App.
Div. 1997), certif. denied, 713 A.2d 498 (N.J. 1998)) (finding
constructive notice where eyewitness noted the dangerous
condition was present for an extended period).
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On the evidence identified by Plaintiff, a jury could
reasonably conclude that Mrs. Capaldi slipped and fell on melted
dog yogurt found dripping from a shopping cart near where she
Plaintiffs have produced evidence connecting the
substance on which Mrs. Capaldi to the substance found near
where she fell, namely, through identifying a similarity in its
distinct pink color.
Moreover, there is evidence that
Defendant’s store manager connected the contents of the
abandoned cart with the substance Mrs. Capaldi fell on, noting
that observation in contemporaneous notes taken during his
investigation of the incident.
Moreover, the parties appear to
agree that Wag-gurt is sold as a frozen product, but appeared in
melted from in the area where Mrs. Capaldi fell.
Together, this evidence is sufficient to defeat a motion
for summary judgment.
Relying on such an evidence, a reasonable
juror could determine from the evidence of melted frozen yogurt
that Defendant should have noticed the defrosting frozen product
in its store, which it should have known could present a fall
hazard, had it acted with reasonable diligence.
See Troupe, 129
A.3d at 1114; Lieberman v. Carnival Cruise Lines, No. 13-4716,
2015 U.S. Dist. LEXIS 153535, *13, (D.N.J. Nov. 12, 2015)
(finding that a jury could infer constructive notice from, among
other things, the presence of melted ice cubes on the floor
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where the plaintiff fell).
Said differently, a jury could
conclude, from the evidence submitted, that Defendant (1) had a
duty, (2) Defendant breached that duty by failing to correct a
defect it had constructive notice of, and (3) that breach
contributed to Plaintiffs’ injuries.
Turning to Mr. Capaldi’s claim, under New Jersey law, a per
quod or loss of consortium claim is maintainable by reason of a
spouse’s personal injury.
In other words, “[i]t depends upon
and is incidental to the personal injury action.”
Santillo, 527 A.2d 78, 82 (N.J. Super. Ct. App. Div. 1987)
(citing Rex v. Hutner, 140 A.2d 753, 754-55 (N.J. 1958)).
Liability on such a claim can rise no higher than liability on
the personal injury claim of the other spouse.
Prosser & Keaton on Torts (5th Ed. 1984) § 125 at 938). Because
the Court finds that Mrs. Capaldi can proceed on her negligence
claim, so too may Mr. Capaldi proceed with his loss of
As such, the Court finds summary judgment must be denied.
Because Plaintiffs have satisfied the traditional negligence
standard at this phase of litigation, the Court need not address
whether the mode-of-operation doctrine would apply.
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For the reasons expressed above, Defendant’s motion for
summary judgment (ECF No. 23) will be denied.
limine motion to preclude the expert testimony of Moore (ECF No.
24) will be denied, without prejudice, for failure to comply
with Local Civil Rule 7.2.
An appropriate Order will be
Date: May 21, 2020___
At Camden, New Jersey
s/ Noel L. Hillman__
NOEL L. HILLMAN, U.S.D.J.
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