Can An Expert Conclude that Excessive Floor Cleaning Create a Dangerous Condition? (NJ)
October 31, 2016
In <em><a href="http://www.judiciary.state.nj.us/opinions/a4943-14.pdf">Elaine Anderocci v. Coach Inc</a>.</em>, the Appellate Division for the Superior Court of New Jersey discussed whether plaintiff’s expert report was admissible to show defendant’s floor cleaning practices created a dangerous condition.
Plaintiff was reaching for a handbag on a shelf in a Coach store when she slipped and fell fracturing her shoulder. Plaintiff argued that “[t]he very slippery floor was like a sheet of glass.” Plaintiff obtained a report from a wood flooring expert who described the wood flooring as "quartersawn walnut planks" installed in a herringbone pattern and milled with stress relief. Although the expert never examined the store’s floor, he concluded that the slippery condition of the floor was attributable to the use of excessive water in cleaning it. The expert based his conclusions on the record, which indicated it was Coach, Inc.’s practice to have the floor “damp mopped” three times per week. According to the plaintiff’s expert, if too much water is used to mop this type of flooring, the water can cause the surface to cup or crown—thereby creating a slippery and dangerous condition. The plaintiff’s expert cited to the National Wood Flooring Association (“NWFA”) maintenance guidelines, which state that floor crowning can be caused by “moisture imbalance” due to excessive water used when cleaning a wood floor.
The court granted summary judgment to the defendant concluding that the plaintiff’s expert report comprised an inadmissible net opinion. He did not inspect the flooring, and accepted plaintiff’s deposition testimony at face value. There was no evidence in the record that defendant’s floor was “cupped” or “crowned.” Notably, the expert report did not establish why Coach, Inc.’s practice of damp-mopping the floor three times per week was too frequent, or conversely, too infrequent. Accordingly, the conclusions were too speculative to be admissible and were not sufficiently grounded upon facts in the record.
Defense counsel should be cognizant that just because an expert is well versed in a specific area, if there is no objective evidence tying the conclusion to the specific facts of the case, it may be rejected by the court as an inadmissible net opinion.
Thanks to Ken Eng for his contribution to this post.