SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0065- 22 PETER KRASSNER, Plaintiff-Respondent,

v. WALMART, Defendant-Appellant, and JASON CUZZO, Defendant.

Argued December 4, 2023

– Decided March 6, 2024 Before Judges Mawla, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L

- 0839

- 18. Michael K. Furey argued the cause for appellant (Da y Pitney, LLP, attorneys; Michael K. Furey, of counse l and on the briefs; Joseph W. Ritter, on the briefs ).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0065

- 22 Brett Roger Greiner argued the cause for respondent (Levinson Axelrod, PA, attorneys; Brett Roger Grein er, on the brief).
PER CURIAM Defendant Walmart Stores East, L.P. ("Walmart") ap peals from the trial court's August 10, 2022 order denying its motions f or a new trial and a remittitur and denying its motion for reconsideration of the c ourt's denial of a motion for a directed verdict. Walmart further appeals the Se ptember 1, 2022 order of judgment. Based on our review of the record and applicable le gal principles, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
I. On February 23, 2018, plaintiff Peter Krassner was a customer at Walmart in Hamilton, Mercer County. Plaintiff entered an aisle where a beam extend ed from the floor to the ceiling partially obstruct ing a portion of the aisle. A fire extinguisher was attached to the aisle side of the beam. A short time after entering the aisle, plaintiff started backing out o f the aisle while pulling his shopping cart . Plaintiff did not look behind him as he moved backwards towards the extinguisher. His left shoulder "lightly brush ed" the fire extinguisher mounted on the beam causing it to fall onto his left foot. P laintiff picked up the3 A- 0065

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fallen extinguisher and placed it next to the beam. The incident was captured by defendant's video surveillance system. Plaintiff subsequently filed an incident report wit h Walmart and show ed Walmart employees where the incident occurred. One of the employees, David Ferguson

— a customer service manager

— observed the band for the fire extinguisher was "warped," "buckled," and not "perf ectly rounded." The straps were supposed to be "flush against the cylinder of the fire extinguisher." When he tried placing the fire extinguisher back in the harness and to recreate the incident, the "latch disengaged immediately." Ferguson noted the band was not supposed to disengage from a single bump. Ferguson also reviewed the video and stated that it was "fair to say" plaintiff did not make any forceful movements towards the extinguisher. Walmart's store manager, Jason Cuzzo, also testifie d, based on the video footage, he did not observe plaintiff do anything i nappropriate leading to the incident. He testified Walmart's asset protection department is responsible for inspecting fire extinguishers and documenting the i nspections mont hly . They are also supposed to "visually keep their eye[s] on things" at other times between inspections but are only required to complete a for mal check-list once a month.4 A- 0065

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The asset protection manager Barbara Laytham's depo sition testimony was read to the jury. She acknowledged that if som eone had inspected the extinguisher's harness before the accident, they ma y have noticed if it was exceedingly easy to undo. She also stated defendan t kept extra harnesses in the store to replace loose harnesses. Following the incident, plaintiff went to the emerg ency room at the St. Francis Medical Center where he was diagnosed with a contusion of the left foot and was placed in a boot. He also went to the emer gency room at Robert Wood Johnson University Hospital in March 2018, due to continued significant pain, swelling, and limited range of motion in his foot. Plaintiff continued to experience excruciating pain , discoloration, and a lack of ability to use his foot. He was eventually referred to Dr. Lance Markbreiter in June 2018. Dr. Markbreiter is an orthopedic surge on whose practice includes treating patients with Complex Re gional Pain Syndrome ("CRPS"). 1 He has also lectured regarding CRPS. Dr. Markbreiter ultimately

1 C RPS is a broad term that covers a condition involving long -lasting pain and inflammation that can occur after an injury or a me dical event or trauma

. Although CRPS can occur anywhere in the body, it usually affects a person ' s arm, leg, hand, or foot. People living with CRPS have pain t hat is much greater than normal, even without a visible injury. Severe or long-lasting cases of CRPS can be disabling and can prevent a person from work ing or doing their usual5 A- 0065

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diagnosed plaintiff with CRPS of the left foot. In reaching this conclusion, Dr. Markbreiter used the "Budapest Criteria," a widely accepted standard for diagnosing CRPS. 2 Dr. Markbreiter testified he also based his diagnos is on plaintiff's electromyogra phy ("EMG") and nerve conduction studies ("NCS"). He noted plaintiff had already started to develop p rogressive CRPS when he went to Robert Wood Johnson in March 2018. Plaintiff was referred to a pain management special ist for sympathetic nerve block injections, but they were unsuccessful. When the nerve block injections failed, it was recommended plaintiff hav e a spinal cord stimulator implanted to assist in controlling pain. Plaintiff decided not to undergo this procedure because of the associated risks. Dr. Markbreiter testified there is "no curative treatment" for CRPS, and he opined plainti ff has a "permanent injury."

activities. Nat'l Inst. of Health, Complex Reg' l Pain Syndrome , Nat'l Inst. of Neurological Disorders & Stroke , https://www.ninds.nih.gov/health

information/disorders/complex-regional-pain-syndrom e (last reviewed Jan

. 31 , 2024).

2 According to Dr. Markbreiter, the Budapest Criter ia is based on symptoms and signs of abnormal pain sensation such as allody nia (disproportionate pain or sensation) or hyperalgesia; vasomotor (temperatu re or skin color changes); sudomotor/edema (changes in sweating or limb swelli ng); and motor/trophic (decreased mobility , changes in hair, nails, and skin) changes

.6 A- 0065

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Plaintiff, who was sixty-four at the time of trial, is the primary caregiver for two of his grandchildren. He testified he is l iving with chronic pain. The CRPS has impacted his ability to do the "majority" of activities he did prior to the accident. He can no longer walk or stand for long periods of time and must avoid touching the top of his foot. Moreover, he t estified his altered gait aggravated the arthritis in his hips. Plaintiff al so suffers from depression and anxiety as a result of living with chronic pain. 3 Defendant's experts disputed Dr. Markbreiter's conc lusions concerning the diagnosis of CRPS. Walmart's experts opined pl aintiff's injury merely consisted of a contusion and hematoma. Moreover, p laintiff has a history of diabetes, vascular disease, cardiovascular disease, atrial fibrillation, and osteoarthritis. Defendant's experts concluded plai ntiff's extreme bruising from the accident was caused by his pre-existing health problems and that he did not suffer from CRPS. Specifically, Dr. Eric Mittelman, a board-certified neurologist, testified plaintiff did not have any neurological injury or a ny other neurological condition. Instead, he found plaintiff had risk fa ctors including diabetes,

3 Plaintiff's life expectancy at the time of trial wa s 19.9 years.7 A- 0065

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arthritis, and vascular disease that explain plaint iff's hematoma and pain. He also opined plaintiff did not satisfy the Budapest Criteria. Dr. Anthony Parks, a board-certified orthopedic sur geon, opined plaintiff's pain in his shoulders, elbows, hips, an d knees was unrelated to the accident and was caused by pre-existing osteoarthri tis in these joints. He also explained that the accident did not cause plaintiff an injury or aggravation to these joints. Dr. Parks also found plaintiff only sustained a contusion. Moreover, he testified plaintiff did not have CRPS based on the Budapest Criteria. On May 16, 2022, the jury returned a verdict for pl aintiff in the amount of $1,754,135. The jury found plaintiff was twenty -six percent liable for the incident, and Walmart was seventy-four percent at f ault. Accordingly, the trial court molded the verdict to $1,317,299.90. Walmart moved for reconsideration of its motion for a directed verdict. Alternativel y, it also moved for a new trial or remittitur of damages based on a variety of grou nds, including plaintiff' s failure to prove the existence of a hazard, plainti ff's failure to prove notice, the excessiveness of the verdict, and the court's issua nce of a mode- of -operation instruction to the jury. On August 10, 2022, the t rial court denied defendant's post -trial motions in a written decision. On September 1, 2022, the trial court8 A- 0065

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entered an amended order of judgment in the amount of $1,491,562.50, which included pre-judgment interest.
II. Walmart raises several issues on appeal

. First, it asserts the trial court committed reversible error by utilizing a mode- of -operation charge. It argues the trial court erred by denying its motion for a new trial because : plaintiff did not present evidence to support the existence of a dangero us condition; plaintiff failed to demonstrate Walmart had notice of the all egedly dangerous condition ; and plaintiff did not provide any expert testimony to support his claim that the location and/or mounting of the fire extinguisher c onstituted a dangerous condition or that Walmart had acted negligently. Walmart further contends plaintiff's counsel impermissibly urged the jury to draw adverse inferences based on Walmart 's fail ur e to call certain witness or present other evidence

. Walmart also asserts the damages award was a miscar riage of justice. We address these arguments in turn below.
A. Walmart argues the trial court improperly instruct ed the jury by giving a mode- of -operation charge that allowed the jury to impose liabilit y on defendant9 A- 0065

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without finding any notice, either actual or constructive. Walmart asserts that in giving this jury charge, the trial court committ ed reversible error. In Washington v. Perez, our Supreme Court articulat ed the standard of review for challenging jury instructions in civil c ases. 219 N.J. 338 (2014).

Appellate review of a challenged jury instruction entails not only scrutiny of the charge itself, but an inquiry as to whether an erroneous charge may have affected the trial's result. Notably, "in construi ng a jury charge, a court must examine the charge as a whole, rather than focus on individual errors in isolation ." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002). "As a general matter, [appellate courts] will not rever se if an erroneous jury instruction was 'incapable of producing an unjust result or prejudicing substanti al rights.'" Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296 (App. Div. 2013). However, erroneo us jury instructions "constitute[] reversible error wh ere the jury outcome might have been different had the jury been instructed correctly." Velazquez ex rel. Velazquez v. Portadin, 163 N.J. 677, 688 (2000). Generally, "erroneous instructions on material poin ts are presumed to be reversible error." McClelland v

. Tucker, 273 N.J. Super. 410, 417 (App. Div. 1994). [Id. at 351 (citations reformatted).] Review of jury instructions is a two-step process. First, we must determine whether an error actually occurred. "In civil matters, the trial court should give an instruction that appropriately guide s the jury on the legal basis of a plaintiff's claim or a defendant's affirmative defense, so long as there is a10 A- 0065

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reasonable factual basis in the evidence to support that claim or defense." Walker v. Costco Wholesale Warehouse, 445 N.J. Supe r. 111, 120 (App. Div. 2016). "Jury charges 'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandabl e language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Velazquez, 163 N.J. at 688 ( quoting Jurman v. Samuel Braen, Inc. , 47 N.J. 586, 591-92 (1966)). Second, we must determine whether that error "may have affected the trial's result." Walker, 44 5 N.J. Super. at 120 (quoting Washington, 219 N.J. at 351). Importantly, we have noted that an improper jury instruction is a poor candidate for application of the harmless error rule, and a charge which misleads a jury will require a reversa l and a new trial. Vallejo b y Morales v. Rahway Police Dep't, 292 N.J. Super. 333 , 342 (App. Div. 1996 ) (internal citations omitted). Over Walmart's objection, the court utilized Model Jury Charge (Civil), 5.20F(10) in charging the jury despite the court re cognizing this was not a modeof -operation case. It appears there was some confusion about the appli cability of the charge because its title did not include "mo de- of -operation" language unlike the current mode- of -operation jury charge. See Model Jury Charge (Civil), 5.20F(11), "Mode of Operation Rule" (rev. Nov. 2022). The court noted11 A- 0065

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in its post -trial decision, "this [c]ourt did not provide a ju ry charge specific to the [m] ode [-] of [-o]peration [r]ule. The jury was told that [p]laintiff must prove actual or constructive notice . . .

. Thus, th is [c]ourt did not instruct the jury that a finding of notice is absolutely not required." Howev er, although the court did give the standard notice and constructive notice ch arges , Model Jury Charge (Civil), 5.20F(8), "Notice of Particular Danger as Condition of Liability" (rev. Nov. 2022), it did in fact also give the jury a mode- of -operation charge , Model Jury Charge (Civil), 5.20F(10), "Notice Not Require d Under Certain Circumstances" (rev. Nov. 2022). Even though the t itle of 5.20F(10) had changed and a new mode- of -operation charge has since been adopted

— 5.20F(11)

— the court erred in giving the 5.20F(10) charge beca use it was, in substance, a mode- of -operation charge. This incorrect charge had the c lear capacity to impact the outcome of the verdict on li ability. The court instructed the jury using the current ver sion of Model Jury Charge (Civil), 5.20F(10) " Not ice Not Required Under Certain Circumstances," (rev. Nov. 2022). The charge is textually identica l to the previous version, which was the original mode- of -operation jury charge. The current version reads: A proprietor of business premises has the duty to

provide a reasonably safe place for customers. If you12 A- 0065

- 22 find that the premises were in a hazardous conditio n, whether caused by defendant's employees or by other s, such as customers, and if you find that said hazard ous condition was likely to result from the particular manner in which defendant's business was conducted, and if you find that defendant failed to take reaso nable measures to prevent the hazardous condition from arising or failed to take reasonable measures to di scover and correct such hazardous condition, then defendan t is liable to plaintiff. In these circumstances, defen dant would be liable even if defendant and defendant' s employees did not have actual or constructive knowledge of the particular unsafe condition, which caused the accident and injury. [Ibid.] The prior version of the same exact charge was titl ed "Notice Not Required When Mode of Op eration Creates Danger." (Emphasis added). 4 In short, the charge was designed to address cases involving mode

- of -operation issues.

4 Compare Model Jury Charge (Civil), 5.20F(11) "Notic e Not Required When Mode of Operation Creates Danger ," (approved May, 1970 ), with the newly numbered Model Jury Charge (Civil), 5.20F(10) "Noti ce Not Required Under Certain Circumstances," (rev. Nov. 2022). The 1970 version titled "Notice Not Required When Mode of Operation Creates Danger" has the exact same substantive language and reads:

A proprietor of business premises has the duty to provide a reasonably safe place for his/her custome rs. If you find that the premises were in a hazardous condition, whether caused by defendant's employees or by others, such as customers, and if you find that said hazardous condition was likely to result from the13 A- 0065

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There are several issues with Model Jury Charge (Ci vil), 5.20F(10), which render it improper for use in the present case. Th e drafters did not make any modifications to it when they implemented 5.20(F)(1 1), which is the current mode- of -operation jury charge. By keeping 5.20F(10) in th e Model Jury Charges , but changing its title, it created unnecessary conf usion. In fact, in Prioleau v. Kentucky Fried Chicken, Inc., our Supre me Court noted: "The mode- of -operation charge that has been in use since 1970, Model Jury Charge (Civil)[,] 5.20F(10), neither reflects recent juris prudence regarding the rule nor clearly explains the purpose and application of the rule. We therefore urge the Model Civil Jury Charge Committee to review the mod el charge." 223 N.J. 245,

particular manner in which defendant's business was conducted, and if you find that defendant failed to take reasonable measures to prevent the hazardous condit ion from arising or failed to take reasonable measures to discover and correct such hazardous condition, then defendant is liable to plaintiff. In these circumstances defendant would be liable even if defendant and his /her employees did not have actual or constructive knowledge of the particular unsafe condition, which cause[d] the accident and injury. [Model Jury Charge (Civil), 5.20F(11), "Notice Not Required When Mode of Operation Creates Danger," (approved May, 1970) .]14 A- 0065

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263 n.5 (2015). The Committee ultimately created a new mode- of -operation jury charge, 5.20F(11), but left the text of 5.20F(10) unchanged with a new heading: "Notice Not Required Under Certain Circum stances." Importantly, the Prioleau Court made clear the mode

- of -operation doctrine "has never been expanded beyond the self-s ervice setting." Id . at 262.
He re, there was no basis for the court to utilize 5.2 0F(10) under the specific facts in this case. There is no suggestion plainti ff's contact with the fire extinguisher occurred in the context of a self-serv ice operation. In fact, the court acknowledged the mode- of -operation charge was not implicated in this matter

. By instructing the jury in accordance with Model Ju ry Charge (Civil), 5.20F(10), the court absolved plaintiff of their burden to prove notice or constructive notice. Plaintiff argues the trial cou rt did not err in giving this jury charge because it was, at most, a harmless error. More particularly, plaintiff asserts that because the trial court also charged t he jury with Model Jury Charge (Civil), 5.20F(8), 5 it was not prejudicial to also charge 5.20F(10). This argument

5 Model Jury Charge (Civil), 5.20F(8), "Notice of Par ticular Danger as Condition of Liability," reads:

If you find that the land (or premises) was not in a reasonably safe condition, then, in order to recove r, plaintiff must show either: (a) Actual Notice for a15 A- 0065

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is unpersuasive because 5.20F(10) completely negate s the need for notice, even if it is coupled with 5.20F(8). In short, 5.20F(10) is not applicable to the facts in this matter. "It is fundamental that '[a]ppropriate and proper charges to a jury are essential for a fair trial.' " Prioleau, 223 N.J. at 256 (alteration in original) (quoting Velazquez , 163 N.J. at 688). "The jury charge is a road map that explain s the applicable legal principles, outlines the jury's function, and spells out 'how the jury should apply the legal principles charged to the facts of the case at hand.' " Toto v. Ensuar, 196 N.J. 134, 144 (2008) (quoting Viscik, 1 73 N.J. at 18). The charge here did not provide the jury with the proper guida nce as to what legal principles to apply to the facts in this matter. Therefore, we are const rained to reverse

period of time before plaintiff's injury to permit the owner/occupier, in the exercise of reasonable care, to have corrected it; or (b) Constructive Notice. Whe n the term Actual Notice is used, we mean that the owner/occupier or the owner's/occupier's employees actually knew about the unsafe condition. When the term Constructive Notice is used, we mean that the particular condition existed for such period of tim e that an owner/occupier of the premises in the exercise o f reasonable care should have discovered its existenc e. That is to say, constructive notice means that the person having a duty of care to another is deemed to have notice of such unsafe conditions, which exist for s uch period of time that a person of reasonable diligenc e would have discovered them.16 A- 0065

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based on the use of this incorrect jury charge, and we remand for a new trial on liability

. B. Walmart next argues the trial court should have or dered a new trial on liability and damages because the jury's verdict is contrary to the weight of the evidence presented at trial concerning whether: (i ) a dangerous condition caused the accident; (ii) Walmart had notice of a dangerou s condition before the accident; and (iii) expert testimony was required t o prove the mounting and location of the fire extinguisher constituted a dan gerous condition. Our review of a motion for a new trial pursuant to Rule 4:49 -1 and a motion for judgment notwithstanding a verdict pursu ant to Rule 4:40 -2 requires that "we apply the same standard that governs the t rial courts. " Smith v. Millville Rescue Squad, 225 N.J. 373, 397 (2016); s ee also Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011). We will disturb the trial court's ruling only if "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49 -1(a). See Risko, 206 N.J. at 521 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 456 ( 1962) ("[A] motion for a new trial 'should be granted only where to do other wise would result in a miscarriage of justice shocking to the conscience o f the court.'"))

. A miscarriage17 A- 0065

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of justice may "arise . . . from manifest lack of i nherently credible evidence to support the finding, obvious overlooking or under[- ]valuation of crucial evidence, [or] a clearly unjust result . . . ." Ri sko, 206 N.J. at 521 (alteration in original) (quoting Lindenmuth v. Holden, 296 N.J. S uper. 42, 48 (App. Div. 1996)). "On a motion for a new trial, all evidence supporti ng the verdict must be accepted as true, and all reasonable inferences mus t be drawn in favor of upholding the verdict. " Boryszewski ex rel. Boryszewski v. Burke, 380 N. J. Super. 361, 391 (App. Div. 2005). The court's function i s mechanical; it "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969 ). "A jury's verdict, including an award of damages, is cloaked with a 'presumption of correctness.'" Cuevas v. Wentworth Grp., 226 N.J. 480, 501 (2016) (quoting Baxter v. Fairmont Food Co., 74 N.J . 588, 598 (1977)). "[T]he trial court may not disturb a damages award entered by a jury unless it is so grossly excessive or so grossly inadequate 'that it shocks the judicial conscience.'" Orientale v. Jennings, 239 N.J. 569, 595 (2019) (quoting Cuevas , 226 N.J. at 485)

. "If a damages award meets that standard, then the court must18 A- 0065

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grant a new trial," but "has the option of recommen ding to the parties a remittitur or an additur in lieu of a new trial," which "requi res the mutual consent of the parties." Id. at 596. Moreover, "[j]udicial revie w of the correctness of a jury's damages award requires that the trial record be vie wed in the light most favorable to plaintiffs." Cuevas, 226 N.J. at 488. We review additur motions under an abuse of discretion standard. Tronolone v. Palmer, 224 N.J. Super. 92 , 104 (App. Div. 1988)

. We will also not reverse a trial court's decision to deny a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10

- 1. Walmart argues plaintiff failed to present the nece ssary evidence to prove his claim the fire extinguisher 's placement on the beam created a dangerous condition. Defendant contends the only "evidence" of this claim was plaintiff's counsel's assertion that the placement was dangerou s. Defendant also argues plaintiff failed to offer expert testimony supporti ng this claim. Walmart next argues plaintiff failed to proffer ev idence defendant had actual or constructive notice of the fire extinguis her being a dangerous condition. It notes plaintiff had no knowledge reg arding whether the mount was broken before the incident or , if it was broken, for how long it had existed in that condition. It further argues the fire extinguishers at the sto re were subject19 A- 0065

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to monthly inspections, and the extinguisher at iss ue passed its most recent inspection before the accident. Walmart next contends plaintiff was required to pr oduce expert testimony regarding issues concern ing the location and mounting of the fire extinguisher. Defendant further asserts there was a need for expe rt testimony regarding the force required to bend the mounting brackets and wh ether the brackets were damaged before or after the accident. A cause of action for negligence "requires the est ablishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages." Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). The plaintiff "bear s the burden of establishing those elements [] 'by some competent proof' . . . ." Davis v. Brick man Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citati on omitted) (quoting Overby v. Union Laundry Co., 28 N.J. Super. 100, 104 (App. Div. 1953)). "[A] proprietor's duty to his invitee is one of due care under all the circumstances." Prioleau, 223 N.J. at 257 (quoting Bozza v. Vornado, Inc., 42 N.J. 355, 359 (1964)). "The duty of due care to a business invitee includes an affirmative duty to inspect the premises and 'requi res a business owner to discover and eliminate dangerous conditions, to mai ntain the premises in safe20 A- 0065

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condition, and to avoid creating conditions that wo uld render the premises unsafe.'" Troupe v. Burlington Coat Factory Wareho use Corp., 443 N.J. Super. 596, 601 (App. Div. 2016) (quoting Nisivoccia v. Gl ass Gardens, Inc., 175 N.J. 559, 563 (2003)). Thus, "an invitee seeking to hold a business propri etor liable in negligence 'must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous conditio n that caused the accident.'" Prioleau , 223 N.J. at 257 (quoting Nisivoccia, 175 N.J. at 56 3). "A defendant has constructive notice when the condition existed 'for such a length of time as reasonably to have resulted in knowledge and correct ion had the defendant been reasonably diligent.'" Troupe, 443 N.J. Super. at 602 (quoting Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (A pp. Div. 1957)). Co nstructive notice may be inferred from "[t]he characteristics of the dangerous condition." Ibid. We are satisfied the trial court properly determine d plaintiff presented sufficient evidence to raise a fact issue as to whe ther the fire extinguisher was a dangerous condition and whether Walmart had constru ctive notice. Cuzzo acknowledged the fire extinguisher encroached into the side aisle where plaintiff encountered it. He further stated that it would no t have been appropriate to move21 A- 0065

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it to the side of the beam facing the main aisle be cause Walmart generally tries to keep those aisles as "free from obstructions as possible." Based on these facts, a jury could conclude t his suggests that a hazardous condition could be created if the fire extinguisher , encroaching as it does into the walkway, were placed in any aisle, particularly a narrow er side aisle. This , coupled with the testimony that plaintiff dislodged the extinguisher by "lightly brush[ ing ]" against it, when Walmart's employees indicated t hat it should not have fallen under such circumstances, is sufficient evidence to raise a fact issue for the jury as to whether this was a dangerous con dition. We are further satisfied that when viewing the fact s here in a light most favorable to plaintiff along with all reasonable in ferences, there was sufficient evidence presented to raise a fact issue as to whet her Walmart had constructive notice of the condition. Walmart acknowledged that upon inspection following the incident, the fire extinguisher's metal harness was w arped and therefore was not in the typical round configuration so that it c ould sit flush against the cylinder of the extinguisher. Ferguson also testif ied the latch on the mount for the extinguisher easily disengaged. Plaintiff ackn owledged there was no direct evidence of the condition of the harness before the accident, but we agree the circumstantial evidence raises a reasonable inferen ce that the apparatus securing22 A- 0065

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the extinguisher to the beam was damaged before the accident and could have been discovered by a reasonable inspection. Moreover, although Walmart argued there were no prior similar incidents involv ing a fire extinguisher being knocked off a beam, the evidence also showed Walmar t kept back-up brackets in the store. Accordingly, the trial court correctly denied Walma rt's motion for reconsideration for a directed verdict and for a ne w trial based on the constructive notice issue. Given our decision above regarding the improper jur y charge, the jury will again have to resolve the disputed facts regarding the condition of the fire extinguisher and determine if the evidence supports the argument that Walmart had constructive notice of the condition. We agree with the trial court that when viewing the evidence in the light most favorable to the plaintiff along with all reasonable inferences, there was adequate evidence to withstand a motion for a new trial or a directed verdict as to the alleged d angerous condition and constructive notice. We next address whether the court erred in not requ iring plaintiff to produce expert testimony as to the alleged dangerous condi tion and the location and mounting of the fire extinguisher. "In most ne gligence cases, the plaintiff is not required to establish the applicable standar d of care." Davis, 219 N.J. at23 A- 0065

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406 (citing Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). In those instances, "[i]t is sufficient for [the] plaintiff to show wha t the defendant did and what the circumstances were. The applicable standard of conduct i s then supplied by the jury[,] which is competent to determine what precau tions a reasonably prudent man in the position of the defendant would have tak en." Id. 406 -07 (alterations in original) (quoting Sanzari, 34 N.J. at 134 ). "Such cases involve facts about which 'a layperson's common knowledge is sufficient to permit a jury to find that the duty of care has been breached without the aid of an expert's opinion.'" Id. at 407 (quoting Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)). "In some cases, however, the 'jury is not competent to supply the standard by which to measure the defendant's conduct,' and t he plaintiff must instead 'establish the requisite standard of care and [the defendant's] deviation from that standard' by 'present[ing] reliable expert testimony on the subj ect.'" Ibid. (alterations in original) (citation omitted) (first quoting Sanzari, 34 N.J. at 134- 35; and then quoting Gi antonnio, 291 N.J. at 42) ; see also N.J.R.E. 702 (permitting expert testimony "[i]f scientific, tech nical, or other specialized knowledge will assist the trier of fact to understa nd the evidence or to determine a fact in issue" ).24 A- 0065

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The Supreme Court has explained that "when deciding whether expert testimony is necessary, a court properly considers '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 [ defendant] was reasonable.'" Davis, 219 N.J. at 407 (alteration in original) (qu oting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)); see also Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 394 (2001) (quoting Est. of Chin v. St. B arnabas Med. Ctr., 160 N.J. 454, 469 (1999)) (holding expert testimony is not n eeded under the affidavit of merit statute when the jury's "common knowledge as lay pers ons is sufficient to enable them, using ordinary understanding and exper ience, to determine a defendant's negligence"). In cases where "the fact finder would not be expected to have sufficient knowledge or experience," expert testimony is needed because the jury "would have to speculate" regarding the st andard of care. Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). We are unconvinced that expert testimony was required un der the facts in this case. The jury here could determine whether W almart's actions under the circumstances were reasonable and what precautions it should have taken. The facts regarding the placement of the fire extinguis her and related inspections to determine whether it was sufficiently secured to th e beam were not so esoteric25 A- 0065

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that jurors would be unable to form a judgment as t o whether Walmart's conduct was reasonable. Accordingly, a jury could determine the applicable standard of conduct as to the issues raised by the parties.
C. Relying primarily on Washington v. Perez , defendant argues plaintiff's counsel repeatedly urged the jury to draw adverse i nferences from defendant's failures to call certain witnesses to testify or to present certain video evidence. 219 N.J. at 3 52

. Walmart asserts that in doing so, plaintiff did not comply with clear legal requirements to make an adverse inferen ce argument because plaintiff's counsel did not give defense counsel, or the cou rt, notice he would be making such an argument.
Because we are rem anding this case because of an improper jury charge , there will be a new trial on liability. We do not know what witnesses may be called or what evidence will be introduced on reman d. It may be that many of the issues raised by Walmart will be moot at the ne w trial. Given the dynamics of the new trial will be different, we need not add ress Walmart's adverse inference arguments at this juncture. Moreover, if these issues arise again,26 A- 0065

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Walmart may interpose an appropriate objection, 6 unlike the first tria l, so the trial court can first address the arguments and cre ate a proper record. On remand, the parties and the court shall be guided b y Washington and its progeny to the extent it is applicable.
D. Lastly, Walmart argues the trial court should order a new trial on damages because the verdict of $1,754,135

— reduced to $1,317,299.90 based on the jury's comparative negligence finding

— was a miscarriage of justice and should shock the judicial conscience. Walmart also contends the damages warrant a new trial because the jury verdict was the result of sympathy , passion, and prejudice. More particularly, Walmart asserts plaintiff only s uffered a contusion that developed into a bruise, and not a dislocation or a fracture. Walmart also emphasizes the fact that plaintiff was able to move around after the accident, went home, and took a shower before seeking medical attention is evidence he

6 "[T]he '[f]ailure to make a timely objection indi cates that defense counsel did not believe the remarks were prejudicial at the tim e they were made,' and it 'also deprives the court of the opportunity to take curat ive action.'" Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009) (second alteration in original) (quoting State v. Timmendequas, 161 N.J. 515, 576 ( 1999) ). "Where defense counsel has not objected, we generally will not rev erse unless plain error is shown. " Ibid. (citing R. 2:10

– 2).27 A- 0065

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was not severely injured. Furthermore, Walmart not es plaintiff's medical bills only amounted to $26,000, and he has not sought any form al treatment since 2020. Walmart emphasizes its experts

— Drs. Mittelman and Park

— both found plaintiff did not have CRPS based on the Budapest C riteria, and his complaints stemmed from his pre-existing medical conditions. Walmart also contends plaintiff's counsel's closing argument (alleging Wa lmart misrepresented its efforts to ensure the fire extinguisher did not pos e a danger) inflamed the jury and caused them to lose objectivity. "Judicial review of the correctness of a jury's dam ages award requires that the trial record be viewed in the light most favorab le to plaintiffs." Cuevas, 226
N.J. at 488. "When a court is persuaded that a new trial must be granted based sol ely on the excessiveness of the jury's damages awar d, it has the power to enter a remittitur reducing the award to the highest amount that could be sustained by the evidence." Id. at 499. Courts "must exercise the power of remittitur with great restraint." Ibid. "A jury's verdict, including an award of damages, i s cloaked with a 'presumption of correctness,'" which "is not overcome unless a defendant can establish, 'clearly and convincingly, ' that the award is 'a miscarriage of justice.'" Id. at 501 (quoting Baxt er, 74 N.J. at 59 6, 598). "[E]ven a seemingly high award should not be disturbed; onl y if the award is one no28 A- 0065

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rational jury could have returned, one so grossly e xcessive, so wide of the mark and pervaded by a sense of wrongness that it shocks the judicial conscience, should a court grant a remittitur." Id. at 500. The standard for "setting aside a verdict already s ustained by the trial judge is high." Horn v. Vill. Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992). Neither a trial judge nor we may rewei gh the evidence and impose a new verdict simply because they disagree with the jury's decision. Battista v. Olson , 213 N.J. Super. 137, 142 (App. Div. 1986). "Only when[,] upon examination[,] the verdict is found to be so contra ry to the weight of the evidence as to give rise to the inescapable conclus ion that it is the result of mistake, passion, prejudice or partiality, may it b e disturbed." Aiello v. Myzie , 88 N.J. Super. 187, 194 (App. Div. 1965). "Further more, jury verdicts should be set aside in favor of new trials only with reluc tance and then only in the cases of clear injustice." Crego v. Carp, 295 N.J. Super . 565, 577 (App. Div. 1996);
R. 4:49 -1(a ). We accord appropriate deference to the trial court' s "feel of the case," Baxter, 74 N.J. at 600, and will not reverse a trial judge's decision on whether the jury verdict is against the weight of the evide nce "unless it clearly appears that there was a miscarriage of justice under the l aw." R. 2:10 -1; Caldwell v.29 A- 0065

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Haynes, 136 N.J. 422, 432 (1994). Additionally, th e jury's damage assessment is entitled to a presumption of correctness and sho uld stand "unless it is so disproportionate to the injury and resulting disabi lity shown as to shock [ the judicial] conscience and to convince [the court] th at to sustain the award would be manifestly unjust." Baxter, 74 N.J. at 596. "This conception of the weight of the evidence governs the trial court as well as the appellate court; and it applies to civil and criminal causes." Hager v. We ber, 7 N.J. 201, 210 (1951). Here, the award was not so grossly excessive that it shocks the judicial conscience. The jury had the opportunity to assess the credibility of several competing witnesses. Viewing the record in a light most favorably to plaintiff, there was sufficient evidence to support the damage s award. Althou gh we recognize plaintiff's damages were contested by Wal mart, Dr. Markbreiter's testimony regarding the permanency and debilitating nature of CRPS, coupled with plaintiff's testimony about his severe and enduring pain

— in the context of a near twenty-year life expectancy

— leads us to conclude the verdict was amply supported by the record and not the result of mista ke, passion, prejudice, or partiality. Furthermore, the jury was free to accept or reject the testimony of Walmart's experts. We would also note, on the issu e of liability, the jury found30 A- 0065

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plaintiff to be twenty-six percent negligent in cau sing the accident, dispelling any notion the jury lost "its objectivity" as argue d by Walmart. We also are unpersuaded plaintiff's counsel's comments on closi ng were so inappropriate that they inflamed the jury

. In short, there was more than a sufficient record t o support the jury's determination, and we discern no basis to disturb the damages verdict. Al though we remand for a new trial on liability, we affirm the jury's verdict on damages. To the extent we have not specifically addressed an y remaining arguments raised on appeal, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed in part, reversed in part, and remanded fo r a new trial on liability only. We do not retain jurisdiction.