PUERTO v. WHOLE FOODS MARKET et al

Filing 38

OPINION. Signed by Judge William J. Martini on 12/19/16. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Docket No.: 14-5118

GABRIELA PUERTO,
Plaintiff,

OPINION
v.
WHOLE FOODS MARKET, and/or ABC
CORP. (said corporation being unknown
and fictitious), XYC MAINTENANCE
COMPANY and/or JOHN DOE 1-10 (said
names being fictitious),
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Gabriela Puerto (“Plaintiff”) brings this action for negligence
against Whole Foods Market (“Whole Foods” or “Defendant”). Plaintiff slipped
and fell on a wet floor in one of Defendant’s grocery stores. Defendant now moves
for summary judgment and to exclude expert testimony offered in support of
Plaintiff’s claim. For the reasons set forth below, the Court DENIES Defendant’s
motion for summary judgment and GRANTS Defendant’s motion to exclude
Plaintiff’s expert testimony.
I.

BACKGROUND1

On the evening of July 21, 2014, Plaintiff Gabriela Puerto visited the Whole
Foods store located in Millburn, New Jersey. She slipped and fell on a section of wet
floor near the checkout area, suffering significant injuries to her back and knee.
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This action was removed from Superior Court of New Jersey, Law Division, Essex Count. ECF
No. 1. The parties are diverse and the amount in controversy exceeds $75,000. See 28 U.S.C. §
1332(a).
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Complaint (“Compl.”) ¶¶ 6-8; Answer to Def. Interrogatory No. 6. Defendant
concedes that the source of the water was ice from Defendant’s mobile
merchandizing display, which had been removed from the same area several minutes
before Plaintiff’s fall. Deposition of Abdul Nasir (“Nasir Dep.”) 61:20-62:7;
Defendant’s Statement of Facts (“Def. SOF”) ¶¶ 3-5.
Near the location of the fall one of Defendant’s employees had placed a
yellow warning sign to indicate that the floor was slippery, while another employee
went to retrieve a mop. ¶ 5. Plaintiff did not see the sign before falling, but
acknowledges it was there. Deposition of Gabriela Puerto (“Puerto Dep.”) 28:9-12.
The fall occurred before the employee could return with the mop. Nasir Dep. 66:210.
In support of her claim Plaintiff offers the expert report of Barry E. Parsons,
who specializes in retail store safety. Certification of David T. Ercolano, Ex. D. The
report states that Whole Foods failed to adhere to standard procedures issued by
various industry groups. Id. Defendant challenges the admissibility of the report
under Federal Rule of Evidence 702.
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides for summary judgment “if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d
335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find
for the non-moving party, and is material if it will affect the outcome of the trial
under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The Court considers all evidence and inferences drawn therefrom in the
light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647
(3d Cir. 2007).
III.

DISCUSSION

A. Motion to Exclude Expert Report
Defendant argues that the report of Plaintiff’s expert should be excluded under
Federal Rule of Evidence 702, because the report does not concern “scientific,

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technical or other specialized knowledge,” Mr. Parsons lacks expert qualifications,
and his report uses no discernable methodology.2
Federal Rule of Evidence 702 states as follows:
If scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the
facts of the case.
FRE 702. Mr. Parson’s report is not likely to “assist the trier of fact to
understand the evidence or to determine a fact in issue.” FRE 702. While
retail safety operations may implicate specialized knowledge in some cases,
the report here provides nothing “beyond the ken of an average juror.” See
Serodio v. University of Med. & Dentistry of New Jersey, 2013 WL
5503528, at *5 (D.N.J. Oct. 1, 2013). Mr. Parsons employs no discernable
methodology beyond restating broad industry guidelines. Nor does the report
assess the physical characteristics of the floor surface. His testimony does
not exhibit the qualities of reliable expert testimony articulated in Daubert v.
Merrell Dow Pharms, Inc., 509 U.S. 579, 593-94 (1993). Defendant’s
request to exclude Plaintiff’s expert testimony is GRANTED.
B. Defendant’s Motion for Summary Judgment
Under New Jersey law, Negligence consists of (1) a duty of care, (2) a breach
of that duty, (3) actual and proximate causation, and (4) damages.” Davis v.
Brickman Landscaping, Ltd., 98 A.3d 1173, 1178-79 (N.J. 2014). “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.” Nisivoccia v. Glass Gardens,
Inc., 818 A.2d 314, 316 (N.J. 2003). A business that is aware of a hazard on its
premises must respond by “either correcting the condition, or, in those circumstances
where it is reasonable to do so, by giving warning to the invitee of the unsafe
Mr. Parson’s testimony has been excluded by courts in other jurisdictions. See Page v.
Supervalu, 2015 WL 1439572, at *8-9 (D. Md. Mar. 26, 2015); Sweeney v. Supervalu, Inc., 2014
WL 2003103 (D. Md. May 15, 2014); Freeman v. Ruby Tuesday, Inc., 2013 WL 4082235, at *2
(E.D. Pa. Aug. 12, 2013).
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condition. Kingett v. Miller, 791 A.2d 224, 225 (N.J. App. Div. 2002) (citations
omitted).
The parties agree that Whole Foods owed a duty of care to Plaintiff and that
Plaintiff was injured as a result of slipping on a wet floor. They disagree as to
whether Whole Foods exhibited “reasonable or due care” by placing a yellow
warning sign near the spill until an employee returned with a mop. Defendant cites
to decisions in other jurisdictions finding that store owners satisfy the duty of care
to invitees by using “caution” signs to alert customers of a spill. See, e.g., Womack
v. Wal-Mart Stores, Inc., 2016 WL 1242438, at *2 (E.D. Mich. Mar. 30, 2016).
Defendant argues that Plaintiff slipped because she was not paying attention to her
surroundings. Plaintiff argues that Defendant should have implemented better
procedures to prevent spills and to clean spills promptly once they occur.
Evaluating the facts in a light most favorable to the nonmoving party, the
Court finds that unresolved issues of fact counsel against granting summary
judgment. Whether a single warning sign adequately alerts customers to a slippery
floor depends on various circumstances, including the size of the spill and the exact
location of the sign. See Imori v. Marination LLC, 192 Wash. App. 1064 (Wash Ct.
App. 2016) (finding no genuine issue of material fact “given the size of the mopped
area, the proximity of the sign . . .,” where spill was approximately 8 inches in
diameter). These details remain unclear. What is clear is that Plaintiff slipped and
hurt herself because water leaked or spilled from one of Defendant’s merchandizing
displays onto the floor.3
Few things are certain in this world. One is that ice becomes water when
exposed to room temperature. Another is that wet floors are often slippery. While
the burden of persuasion remains always with Plaintiff, “[a]bsent an explanation by
defendants, a jury could find from the condition of the premises and the nature of
the business that defendants did not exercise due care in operating the
[establishment], and that said negligent operation was the proximate cause of [the]

Although the “mode-of-operation” cases cited by Plaintiff focus primarily on inferring a
business’ knowledge of a hazard—which Defendant already concedes—those cases also support
the proposition that when a method of service naturally and foreseeably creates a particular hazard,
a reasonable business owner would anticipate and eliminate that hazard to prevent injury to its
customers. Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314, 317 (2003) (“The plaintiff is entitled
to an inference of negligence, shifting the burden of production to the defendant, who may avoid
liability if it shows that it did ‘all that a reasonably prudent man would do in the light of the risk
of injury [the] operation entailed.’”).
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injuries.” Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314, 317 (N.J. 2003) (citing
Bozza v. Vornado, Inc., 200 A.2d 777, 780 (N.J. 1964)). Defendant’s motion for
summary judgment is DENIED.

C. CONCLUSION
For the forgoing reasons, the Court GRANTS Defendant’s request to exclude
Plaintiff’s expert testimony and DENIES Defendant’s motion for summary
judgment.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
December 19, 2016

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