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 (Day 

Pitney, LLP, attorneys; Michael K. Furey, of counsel 

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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-0065-22

Brett Roger Greiner argued the cause for respondent

(Levinson Axelrod, PA, attorneys; Brett Roger Greiner, 

on the brief). 

PER CURIAM 

 Defendant Walmart Stores East, L.P. ("Walmart") appeals from the trial 

court's August 10, 2022 order denying its motions for a new trial and a remittitur 

and denying its motion for reconsideration of the court's denial of a motion for 

a directed verdict. Walmart further appeals the September 1, 2022 order of 

judgment. Based on our review of the record and applicable legal 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 extended

from the floor to the ceiling partially obstructing 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 of the aisle while pulling his 

shopping cart. Plaintiff did not look behind him as he moved backwards towards 

the extinguisher. His left shoulder "lightly brushed" the fire extinguisher 

mounted on the beam causing it to fall onto his left foot. Plaintiff picked up the 
3 A-0065-22

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 with Walmart and showed 

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 "perfectly 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 testified, based on the video 

footage, he did not observe plaintiff do anything inappropriate leading to the 

incident. He testified Walmart's asset protection department is responsible for 

inspecting fire extinguishers and documenting the inspections monthly. They 

are also supposed to "visually keep their eye[s] on things" at other times between 

inspections but are only required to complete a formal check-list once a month. 
4 A-0065-22

The asset protection manager Barbara Laytham's deposition testimony 

was read to the jury. She acknowledged that if someone had inspected the 

extinguisher's harness before the accident, they may have noticed if it was 

exceedingly easy to undo. She also stated defendant kept extra harnesses in the 

store to replace loose harnesses. 

Following the incident, plaintiff went to the emergency 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 emergency 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 surgeon whose 

practice includes treating patients with Complex Regional Pain Syndrome 

("CRPS").1 He has also lectured regarding CRPS. Dr. Markbreiter ultimately 

1

 CRPS is a broad term that covers a condition involving long-lasting pain and 

inflammation that can occur after an injury or a medical 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 that 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 working or doing their usual 
5 A-0065-22

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 diagnosis on 

plaintiff's electromyography ("EMG") and nerve conduction studies ("NCS"). 

He noted plaintiff had already started to develop progressive CRPS when he 

went to Robert Wood Johnson in March 2018. 

Plaintiff was referred to a pain management specialist for sympathetic 

nerve block injections, but they were unsuccessful. When the nerve block 

injections failed, it was recommended plaintiff have 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 plaintiff 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/healthinformation/disorders/complex-regional-pain-syndrome (last reviewed Jan. 31, 

2024). 

2

 According to Dr. Markbreiter, the Budapest Criteria is based on symptoms 

and signs of abnormal pain sensation such as allodynia (disproportionate pain 

or sensation) or hyperalgesia; vasomotor (temperature or skin color changes); 

sudomotor/edema (changes in sweating or limb swelling); and motor/trophic 

(decreased mobility, changes in hair, nails, and skin) changes. 
6 A-0065-22

Plaintiff, who was sixty-four at the time of trial, is the primary caregiver 

for two of his grandchildren. He testified he is living 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 testified his altered gait 

aggravated the arthritis in his hips. Plaintiff also suffers from depression and 

anxiety as a result of living with chronic pain.3 

Defendant's experts disputed Dr. Markbreiter's conclusions concerning 

the diagnosis of CRPS. Walmart's experts opined plaintiff's injury merely 

consisted of a contusion and hematoma. Moreover, plaintiff has a history of 

diabetes, vascular disease, cardiovascular disease, atrial fibrillation, and 

osteoarthritis. Defendant's experts concluded plaintiff'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 any other neurological 

condition. Instead, he found plaintiff had risk factors including diabetes, 

3

 Plaintiff's life expectancy at the time of trial was 19.9 years. 
7 A-0065-22

arthritis, and vascular disease that explain plaintiff's hematoma and pain. He 

also opined plaintiff did not satisfy the Budapest Criteria. 

Dr. Anthony Parks, a board-certified orthopedic surgeon, opined 

plaintiff's pain in his shoulders, elbows, hips, and knees was unrelated to the 

accident and was caused by pre-existing osteoarthritis 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 plaintiff 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 fault. Accordingly, the trial 

court molded the verdict to $1,317,299.90. Walmart moved for reconsideration 

of its motion for a directed verdict. Alternatively, it also moved for a new trial 

or remittitur of damages based on a variety of grounds, including plaintiff's 

failure to prove the existence of a hazard, plaintiff's failure to prove notice, the 

excessiveness of the verdict, and the court's issuance of a mode-of-operation 

instruction to the jury. On August 10, 2022, the trial court denied defendant's 

post-trial motions in a written decision. On September 1, 2022, the trial court 
8 A-0065-22

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 dangerous condition; plaintiff 

failed to demonstrate Walmart had notice of the allegedly dangerous condition; 

and plaintiff did not provide any expert testimony to support his claim that the 

location and/or mounting of the fire extinguisher constituted 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 failure to call certain witness or present other evidence. 

Walmart also asserts the damages award was a miscarriage of justice. We 

address these arguments in turn below. 

A.

 Walmart argues the trial court improperly instructed the jury by giving a 

mode-of-operation charge that allowed the jury to impose liability on defendant 
9 A-0065-22

without finding any notice, either actual or constructive. Walmart asserts that 

in giving this jury charge, the trial court committed reversible error. 

In Washington v. Perez, our Supreme Court articulated the standard of 

review for challenging jury instructions in civil cases. 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 construing 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 reverse if 

an erroneous jury instruction was 'incapable of 

producing an unjust result or prejudicing substantial 

rights.'" Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. 

Super. 287, 296 (App. Div. 2013). However, erroneous 

jury instructions "constitute[] reversible error where 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 points 

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 guides the jury on the legal basis 

of a plaintiff's claim or a defendant's affirmative defense, so long as there is a 
10 A-0065-22

reasonable factual basis in the evidence to support that claim or defense." 

Walker v. Costco Wholesale Warehouse, 445 N.J. Super. 111, 120 (App. Div. 

2016). "Jury charges 'must outline the function of the jury, set forth the issues, 

correctly state the applicable law in understandable 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, 445 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 reversal and a new trial. Vallejo by 

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 recognizing this was not a modeof-operation case. It appears there was some confusion about the applicability 

of the charge because its title did not include "mode-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 noted 
11 A-0065-22

in its post-trial decision, "this [c]ourt did not provide a jury 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, this [c]ourt did not instruct the jury that 

a finding of notice is absolutely not required." However, although the court did 

give the standard notice and constructive notice charges, 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 Required Under Certain 

Circumstances" (rev. Nov. 2022). Even though the title 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 because it was, in 

substance, a mode-of-operation charge. This incorrect charge had the clear 

capacity to impact the outcome of the verdict on liability. 

The court instructed the jury using the current version of Model Jury 

Charge (Civil), 5.20F(10) "Notice Not Required Under Certain Circumstances," 

(rev. Nov. 2022). The charge is textually identical 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 you 
12 A-0065-22

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 the particular 

manner in which defendant's business was conducted,

and if you find that defendant failed to take reasonable 

measures to prevent the hazardous condition 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 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 titled "Notice Not Required 

When Mode of Operation 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) "Notice Not Required When 

Mode of Operation Creates Danger," (approved May, 1970), with the newly 

numbered Model Jury Charge (Civil), 5.20F(10) "Notice 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 customers. 

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 the 
13 A-0065-22

There are several issues with Model Jury Charge (Civil), 5.20F(10), which 

render it improper for use in the present case. The drafters did not make any 

modifications to it when they implemented 5.20(F)(11), which is the current 

mode-of-operation jury charge. By keeping 5.20F(10) in the Model Jury 

Charges, but changing its title, it created unnecessary confusion. In fact, in 

Prioleau v. Kentucky Fried Chicken, Inc., our Supreme Court noted: "The 

mode-of-operation charge that has been in use since 1970, Model Jury Charge 

(Civil)[,] 5.20F(10), neither reflects recent jurisprudence 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 model 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 condition 

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-0065-22

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 Circumstances." 

Importantly, the Prioleau Court made clear the mode-of-operation 

doctrine "has never been expanded beyond the self-service setting." Id. at 262. 

Here, there was no basis for the court to utilize 5.20F(10) under the specific 

facts in this case. There is no suggestion plaintiff's contact with the fire 

extinguisher occurred in the context of a self-service 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 Jury Charge (Civil), 

5.20F(10), the court absolved plaintiff of their burden to prove notice or 

constructive notice. Plaintiff argues the trial court 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 the 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 Particular 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 recover, 

plaintiff must show either: (a) Actual Notice for a 
15 A-0065-22

is unpersuasive because 5.20F(10) completely negates 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 explains 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, 173 N.J. at 18). The charge 

here did not provide the jury with the proper guidance as to what legal principles 

to apply to the facts in this matter. Therefore, we are constrained 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. When 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 time that 

an owner/occupier of the premises in the exercise of 

reasonable care should have discovered its existence. 

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 such 

period of time that a person of reasonable diligence 

would have discovered them. 
16 A-0065-22

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 ordered 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 dangerous condition before the 

accident; and (iii) expert testimony was required to prove the mounting and 

location of the fire extinguisher constituted a dangerous condition. 

Our review of a motion for a new trial pursuant to Rule 4:49-1 and a 

motion for judgment notwithstanding a verdict pursuant to Rule 4:40-2 requires 

that "we apply the same standard that governs the trial courts." Smith v. 

Millville Rescue Squad, 225 N.J. 373, 397 (2016); see 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 otherwise would result in a 

miscarriage of justice shocking to the conscience of the court.'")). A miscarriage 
17 A-0065-22

of justice may "arise . . . from manifest lack of inherently credible evidence to 

support the finding, obvious overlooking or under[-]valuation of crucial 

evidence, [or] a clearly unjust result . . . ." Risko, 206 N.J. at 521 (alteration in 

original) (quoting Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 

1996)). 

"On a motion for a new trial, all evidence supporting the verdict must be 

accepted as true, and all reasonable inferences must 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 is 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 must 
18 A-0065-22

grant a new trial," but "has the option of recommending to the parties a remittitur 

or an additur in lieu of a new trial," which "requires the mutual consent of the 

parties." Id. at 596. Moreover, "[j]udicial review of the correctness of a jury's 

damages award requires that the trial record be viewed 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 necessary 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 dangerous. Defendant also argues 

plaintiff failed to offer expert testimony supporting this claim. 

 Walmart next argues plaintiff failed to proffer evidence defendant had 

actual or constructive notice of the fire extinguisher being a dangerous 

condition. It notes plaintiff had no knowledge regarding 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 store were subject 
19 A-0065-22

to monthly inspections, and the extinguisher at issue passed its most recent 

inspection before the accident. 

 Walmart next contends plaintiff was required to produce expert testimony 

regarding issues concerning the location and mounting of the fire extinguisher. 

Defendant further asserts there was a need for expert testimony regarding the 

force required to bend the mounting brackets and whether the brackets were 

damaged before or after the accident. 

 A cause of action for negligence "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." Jersey Cent. Power & Light Co. v. Melcar Util. 

Co., 212 N.J. 576, 594 (2013). The plaintiff "bears the burden of establishing 

those elements[] 'by some competent proof' . . . ." Davis v. Brickman 

Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citation 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 'requires a business owner to 

discover and eliminate dangerous conditions, to maintain the premises in safe 
20 A-0065-22

condition, and to avoid creating conditions that would render the premises 

unsafe.'" Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 

596, 601 (App. Div. 2016) (quoting Nisivoccia v. Glass Gardens, Inc., 175 N.J. 

559, 563 (2003)). 

Thus, "an invitee seeking to hold a business proprietor liable in negligence 

'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.'" 

Prioleau, 223 N.J. at 257 (quoting Nisivoccia, 175 N.J. at 563). "A defendant 

has constructive notice when the condition existed 'for such a length of time as 

reasonably to have resulted in knowledge and correction 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 (App. Div. 1957)). Constructive 

notice may be inferred from "[t]he characteristics of the dangerous condition." 

Ibid. 

We are satisfied the trial court properly determined plaintiff presented 

sufficient evidence to raise a fact issue as to whether the fire extinguisher was a 

dangerous condition and whether Walmart had constructive notice. Cuzzo 

acknowledged the fire extinguisher encroached into the side aisle where plaintiff 

encountered it. He further stated that it would not have been appropriate to move 
21 A-0065-22

it to the side of the beam facing the main aisle because Walmart generally tries 

to keep those aisles as "free from obstructions as possible." 

Based on these facts, a jury could conclude this 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 narrower side aisle. This, 

coupled with the testimony that plaintiff dislodged the extinguisher by "lightly 

brush[ing]" against it, when Walmart's employees indicated that 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 condition. 

We are further satisfied that when viewing the facts here in a light most 

favorable to plaintiff along with all reasonable inferences, there was sufficient 

evidence presented to raise a fact issue as to whether Walmart had constructive 

notice of the condition. Walmart acknowledged that upon inspection following 

the incident, the fire extinguisher's metal harness was warped and therefore was 

not in the typical round configuration so that it could sit flush against the 

cylinder of the extinguisher. Ferguson also testified the latch on the mount for 

the extinguisher easily disengaged. Plaintiff acknowledged there was no direct 

evidence of the condition of the harness before the accident, but we agree the 

circumstantial evidence raises a reasonable inference that the apparatus securing 
22 A-0065-22

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 involving a fire extinguisher being 

knocked off a beam, the evidence also showed Walmart kept back-up brackets 

in the store. Accordingly, the trial court correctly denied Walmart's motion for 

reconsideration for a directed verdict and for a new trial based on the 

constructive notice issue. 

Given our decision above regarding the improper jury 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 dangerous condition and 

constructive notice. 

We next address whether the court erred in not requiring plaintiff to 

produce expert testimony as to the alleged dangerous condition and the location 

and mounting of the fire extinguisher. "In most negligence cases, the plaintiff 

is not required to establish the applicable standard of care." Davis, 219 N.J. at 
23 A-0065-22

406 (citing Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). In those instances, 

"[i]t is sufficient for [the] plaintiff to show what the defendant did and what the 

circumstances were. The applicable standard of conduct is then supplied by the 

jury[,] which is competent to determine what precautions a reasonably prudent 

man in the position of the defendant would have taken." 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 the 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 subject.'" Ibid. 

(alterations in original) (citation omitted) (first quoting Sanzari, 34 N.J. at 134-

35; and then quoting Giantonnio, 291 N.J. at 42); see also N.J.R.E. 702 

(permitting expert testimony "[i]f scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the evidence or to determine 

a fact in issue").
24 A-0065-22

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) (quoting 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. Barnabas Med. Ctr., 160 N.J. 

454, 469 (1999)) (holding expert testimony is not needed under the affidavit of 

merit statute when the jury's "common knowledge as lay persons is sufficient to 

enable them, using ordinary understanding and experience, to determine a 

defendant's negligence"). In cases where "the factfinder would not be expected 

to have sufficient knowledge or experience," expert testimony is needed because 

the jury "would have to speculate" regarding the standard of care. Torres v. 

Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). 

We are unconvinced that expert testimony was required under the facts in 

this case. The jury here could determine whether Walmart's actions under the 

circumstances were reasonable and what precautions it should have taken. The 

facts regarding the placement of the fire extinguisher and related inspections to 

determine whether it was sufficiently secured to the beam were not so esoteric 
25 A-0065-22

that jurors would be unable to form a judgment as to 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 inferences from defendant's 

failures to call certain witnesses to testify or to present certain video evidence. 

219 N.J. at 352. Walmart asserts that in doing so, plaintiff did not comply with 

clear legal requirements to make an adverse inference argument because 

plaintiff's counsel did not give defense counsel, or the court, notice he would be 

making such an argument. 

Because we are remanding 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 remand. It may be that many of 

the issues raised by Walmart will be moot at the new trial. Given the dynamics 

of the new trial will be different, we need not address Walmart's adverse 

inference arguments at this juncture. Moreover, if these issues arise again, 
26 A-0065-22

Walmart may interpose an appropriate objection,6 unlike the first trial, so the 

trial court can first address the arguments and create a proper record. On 

remand, the parties and the court shall be guided by 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 suffered 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 indicates that defense counsel did 

not believe the remarks were prejudicial at the time they were made,' and it 'also 

deprives the court of the opportunity to take curative 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 reverse unless plain error is 

shown." Ibid. (citing R. 2:10–2). 
27 A-0065-22

was not severely injured. Furthermore, Walmart notes plaintiff's medical bills 

only amounted to $26,000, and he has not sought any formal treatment since 

2020. Walmart emphasizes its experts—Drs. Mittelman and Park—both found 

plaintiff did not have CRPS based on the Budapest Criteria, and his complaints 

stemmed from his pre-existing medical conditions. Walmart also contends 

plaintiff's counsel's closing argument (alleging Walmart misrepresented its 

efforts to ensure the fire extinguisher did not pose a danger) inflamed the jury 

and caused them to lose objectivity. 

"Judicial review of the correctness of a jury's damages award requires that 

the trial record be viewed in the light most favorable to plaintiffs." Cuevas, 226 

N.J. at 488. "When a court is persuaded that a new trial must be granted based 

solely on the excessiveness of the jury's damages award, 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, is 

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 Baxter, 74 N.J. at 596, 598). "[E]ven 

a seemingly high award should not be disturbed; only if the award is one no 
28 A-0065-22

rational jury could have returned, one so grossly excessive, 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 sustained 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 reweigh 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 contrary to the weight of the 

evidence as to give rise to the inescapable conclusion that it is the result of 

mistake, passion, prejudice or partiality, may it be disturbed." Aiello v. Myzie, 

88 N.J. Super. 187, 194 (App. Div. 1965). "Furthermore, jury verdicts should 

be set aside in favor of new trials only with reluctance 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 evidence "unless it clearly appears 

that there was a miscarriage of justice under the law." R. 2:10-1; Caldwell v. 
29 A-0065-22

Haynes, 136 N.J. 422, 432 (1994). Additionally, the jury's damage assessment 

is entitled to a presumption of correctness and should stand "unless it is so 

disproportionate to the injury and resulting disability shown as to shock [the

judicial] conscience and to convince [the court] that 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. Weber, 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 damages award. Although we 

recognize plaintiff's damages were contested by Walmart, 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 mistake, 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 issue of liability, the jury found 
30 A-0065-22

plaintiff to be twenty-six percent negligent in causing the accident, dispelling 

any notion the jury lost "its objectivity" as argued by Walmart. We also are 

unpersuaded plaintiff's counsel's comments on closing were so inappropriate 

that they inflamed the jury. In short, there was more than a sufficient record to 

support the jury's determination, and we discern no basis to disturb the damages 

verdict. Although we remand for a new trial on liability, we affirm the jury's 

verdict on damages. 

To the extent we have not specifically addressed any 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 for a new trial on liability 

only. We do not retain jurisdiction.