Wade Clark Mulcahy LLP

The New Jersey Appellate Division recently ordered a new liability trial after a jury issued a seven-figure verdict due to the trial court’s incorrect use of a jury charge. In Krassner v. Walmart, the plaintiff was backing out of an aisle while pulling his shopping cart and moved backwards towards a fire extinguisher. His shoulder lightly brushed the extinguisher which caused it to fall onto his foot. Plaintiff then allegedly developed Complex Regional Pain Syndrome (“CRPS”) and underwent significant treatment. The case went to trial and resulted in a verdict of $1,754,135 with the plaintiff being allocated twenty-six percent comparative negligence. The trial court molded the verdict to $1,317,299.90 and entered judgment in the amount of $1,491,562.50 including pre-judgment interest.

Walmart appealed on a variety of grounds, including that the trial court improperly instructed the jury by giving Model Jury Charge (Civil), 5.20F(10) “Notice Not Required Under Certain Circumstances,” (rev. Nov. 2022), also known as the “mode-of-operation” charge. This charge instructed the jury to impose liability where a hazardous condition is likely to result from the particular manner in which a defendant’s business is conducted and defendant failed to take reasonable measures to prevent, discover or correct the hazardous condition, even if the defendant did not have actual or constructive notice of the dangerous condition.

The Appellate Division reviewed the jury instruction under a two-step process. First, the Court must determine if an error actually occurred in issuing the instruction. Second, the Court examined whether the error affected the trial result. In applying this test, the Court recognized that the trial court gave the mode-of-operation charge along with the standard notice and constructive notice charges, over Walmart’s objection. However, the Court found that the accident did not take place in a service setting and therefore there was no basis to apply the mode-of-operation charge. The Court also found that by instructing the jury with this charge, the trial court absolved plaintiff of his burden to prove notice or constructive notice. Because the charge was inapplicable, and negated plaintiff’s need to prove notice, the Court remanded the case for a new trial on liability. However, the Court also rejected Walmart’s challenge as to the amount awarded to the plaintiff and affirmed the jury’s verdict as to damages.

The Krassner decision highlights the importance of providing juries with correct instructions and jury charges and in making timely objections when courts fail to do so. The failure to properly instruct a jury could provide significant grounds for an appeal.