SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2169-14T1

MINDY KLARMAN,

Plaintiff-Respondent,

v.

PATHMARK SUPERMARKET and 

PATHMARK OF LAKE HOPATCONG,

Defendants-Appellants.

__________________________________

Argued November 7, 2018 – Decided

Before Judges Yannotti, Gilson and Natali.

On appeal from Superior Court of New Jersey, Law 

Division, Morris County, Docket No. L-1284-11.

Edward J. De Pascale argued the cause for appellants 

(McElroy, Deutsch, Mulvaney & Carpenter, LLP, 

attorneys; William C. Carey, on the briefs).

Craig M. Rothenberg argued the cause for respondent 

(Rothenberg, Rubenstein, Berliner & Shinrod, LLC, 

attorneys; Elizabeth H. Hamlin, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 24, 2018
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Defendants Pathmark Supermarket and Pathmark of Lake Hopatcong 

appeal from an order entered in this matter on December 4, 2014, which denied 

defendants' motion for a new trial or remittitur, and entered judgment for 

plaintiff in the amount of $1,530,000, plus prejudgment interest, and attorney's 

fees and costs pursuant to Rule 4:58-2(a), the offer of judgment rule. We affirm.

I.

In May 2011, plaintiff filed a complaint alleging that on January 31, 2011, 

she was in defendants' supermarket in Lake Hopatcong and fell. Plaintiff alleged 

defendants allowed a dangerous and hazardous condition to exist on the 

property, which caused her to fall. Plaintiff claims she sustained severe, 

personal injuries for which she sought damages, interest, and the costs of suit. 

Thereafter, the parties engaged in discovery and the parties exchanged offers of 

judgment pursuant to Rule 4:58-1. Plaintiff rejected defendants' offer, and in 

September and October 2014, the matter was tried before a jury. 

At trial, plaintiff testified that on January 31, 2011, she went with her son 

to defendants' supermarket to purchase some items that she needed. Plaintiff's

son remained in the car while plaintiff entered the store. It was a sunny day, but 

it had snowed before that day, and there were piles of snow in the parking lot. 

Plaintiff did not take a shopping cart, but she noted that they were stored outside 
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the store and throughout the parking lot. Plaintiff did not recall whether there 

was a mat on the floor in the vestibule or the entrance to the store. 

Plaintiff went to the produce aisle and "grabbed" several items. She 

proceeded to the meat department, where she picked up some chicken. Plaintiff 

then went to the check out to pay for her items. She slipped and landed on her 

left knee. Plaintiff said that she tried to break her fall with her left arm. She 

was carrying a shopping basket in her right hand. She said the basket "went 

flying with [her] groceries." 

Plaintiff stated that she was on the floor and several individuals came to 

her aid. A police officer asked her where she slipped, and she replied, "right 

there." She observed "a puddle of water or a liquid" at that location. Plaintiff

estimated the puddle was about twelve inches in diameter. 

Plaintiff stated that she injured her left shoulder and left knee. She felt 

"excruciating" pain in her knee. She also said she hurt her neck and back. 

Emergency medical personnel arrived, placed her on a stretcher, and transported 

her by ambulance to a hospital. 

At the hospital, plaintiff learned she had fractured her shoulder and knee, 

and required surgery. The surgery was performed and five days later, plaintiff 

was discharged from the hospital. She returned to the hospital two weeks later 
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to have surgical staples removed from her knee. Thereafter, plaintiff engaged 

in multiple rounds of physical therapy for the injuries to her shoulder and knee. 

Plaintiff further testified that her knee remained "swollen and hot for a 

couple of years after that injury." She estimated that she last received medical 

treatment for her injuries in 2013. Plaintiff stated that at the time of her final 

visit, her shoulder had a good range of motion and her ability to bear weight had 

improved from the time of the injury. She stated her knee also had a good range 

of motion, but weight bearing was still painful. Prior to the final visit, plaintiff's 

physician diagnosed her with arthritis underneath the kneecap, and administered 

gel injections to help alleviate the pain. 

At the time of the accident, Reginald Slavin was the assistant store 

manager for the supermarket. He was deposed, and at trial, the parties agreed 

that Slavin's deposition testimony would be read into the record. Slavin testified 

that at the time of plaintiff's accident, he was responsible for the entire store. 

There were about thirty-five persons working in the store that day, and one of 

those individuals was a porter, who had responsibility to clean and maintain the 

premises. 

Slavin said that after plaintiff fell, he was the first person on the scene, 

and he observed water on the floor. He stated that the water had come from 
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snow "that shook off the bottom of carriages because there was snowfall and it 

was on the bottom of the carriages." He was asked if he understood that 

customers had entered the store, bringing shopping carts from outside the store, 

which had snow on them. Slavin replied, "Yes." 

Slavin agreed that the snow on the shopping carts would melt and the 

water would drip on the floor. Previously, Slavin determined the most efficient 

way to deal with the water problem was to place mats on the floor. The mats

would collect most of the water that had fallen from the carts. Slavin believed 

this is how the water got onto the floor on the day plaintiff was injured. 

Slavin further testified that the supermarket did not have a protocol which 

required an employee to go through the market on a regular basis to ensure there 

was no water on the floor from the shopping carts. He said the porter did not 

have responsibility for cleaning the snow, ice, or wetness from the shopping 

carts before customers or employees brought them into the store. He also stated

the supermarket did not have a protocol to ensure that snow or ice did not 

accumulate on the shopping carts. 

Plaintiff also presented testimony from Steven Nehmer, M.D., an 

orthopedic surgeon. Nehmer explained that based on his examination of 

plaintiff's injuries and a review of her medical records, he believed plaintiff's 
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fall on January 31, 2011, caused the injuries to her left shoulder and left knee. 

Nehmer stated that arthritis was present beneath plaintiff's kneecap, which was 

related to the fall and subsequent fracture. He explained that arthritis is a 

progressive condition, which causes increased pain when an individual engages

in physical activity. Nehmer further testified that he did not expect plaintiff to 

recover fully from her injuries. He stated that plaintiff will "always have some 

symptoms, in her shoulder probably more intermittently, but certainly in her 

knee she will have pain, and chances are with time it will grow wors[e]." 

After the evidence had been presented, the judge conducted a charge 

conference. Over defendants' objection, the judge ruled that he would instruct 

the jury on the mode-of-operation rule and instruct the jury that plaintiff would 

not have to prove defendants had actual or constructive notice of the alleged 

dangerous condition. 

Defendants then moved for involuntary dismissal of the complaint 

pursuant to Rule 4:37-1(a), and plaintiff filed a motion for a directed verdict on 

the issue of liability. The judge reserved decisions on the motions. Counsel 

then presented their closing arguments, and the judge instructed the jurors on 

the principles that they should apply in reaching their decision. 
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The jury returned a verdict in plaintiff's favor and awarded her $1,500,000 

for pain, suffering, disability, and the loss of the enjoyment of life, along with

$30,000 for lost income. Thereafter, defendants filed a motion for a new trial 

or remittitur. After hearing oral arguments, the judge denied the motion. The

judge entered an order dated December 4, 2014, which denied the motion and 

entered judgment for plaintiff. This appeal followed.

II.

Defendants first argue that the trial judge erred by charging the jury in 

accordance with the mode-of-operation rule. Defendants contend the jury's 

decision should have been governed by general negligence principles pertaining 

to injuries sustained by business invitees due to a dangerous condition of the 

business's property. We disagree. 

In New Jersey, a business owner owes 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., 175 N.J. 559, 563 (2003). 

A business owner has an affirmative duty to inspect the premises, discover or 

eliminate dangerous conditions, and maintain the premises in a safe condition. 

Ibid. 
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Generally, a business owner is not liable for injuries caused by a 

dangerous condition on its property unless the owner had actual or constructive 

notice of the condition. Ibid. The plaintiff may show the defendant had 

constructive notice of the condition if it existed for a sufficient length so that a 

reasonably diligent person would have known of the condition. Parmenter v. 

Jarvis Drug Store, Inc., 48 N.J. Super. 507, 510 (App. Div. 1957). 

The mode-of-operation rule is a "special application of foreseeability 

principles" created to address the risks posed by certain businesses whose 

operations involve customer self-service. Prioleau v. Ky. Fried Chicken, Inc., 

223 N.J. 245, 262 (2015) (citing Nisivoccia, 175 N.J. at 563-66; Wollerman v. 

Grand Union Stores, Inc., 47 N.J. 426, 429-30 (1966); Bozza v. Vornado, Inc., 

42 N.J. 355, 358-60 (1964)). Under the mode-of-operation rule, business 

invitees who are injured while engaged in customer self-service are "entitled to 

an inference of negligence" and need not "prove that the business owner had 

actual or constructive notice of the dangerous condition that caused the 

accident." Id. at 248. 

To apply the mode-of-operation rule, the court considers the following.

First, the plaintiff must show that he or she sustained an injury in a self-service 

setting, where customers independently handle merchandise or "come into direct 
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contact with product displays, shelving, packaging, and other aspects of the 

facility that may present a risk" to the invitee. Id. at 262. Second, the accident 

occurred in an area "affected by the business's self-service operations, [however, 

the area] may extend beyond the produce aisle of supermarkets and other 

facilities traditionally associated with self-service activities." Ibid. Third, the 

rule is not limited to situations in which a customer's negligence creates a 

dangerous condition. Id. at 263. 

When the mode-of-operation rule applies, the plaintiff is entitled to an 

inference of negligence, which shifts the burden of production to the defendant. 

Ibid. The defendant may avoid liability if it presents evidence showing it did 

all that a reasonable prudent person would have done in light of the risk of injury 

the mode of operation entails. Ibid. 

Here, the trial judge correctly ruled that the mode-of-operation rule 

applied. It is undisputed that defendants' supermarket is a self-service operation, 

and plaintiff was injured in an area affected by the market's self-service 

operation. Plaintiff testified she slipped and fell due to a puddle of water on the 

floor of the store, near the check-out section. Slavin testified unequivocally that 

customers brought shopping carts into the store, and the carts were laden with 
10 A-2169-14T1

snow, which had fallen earlier. Once inside, the snow melted and collected on 

the floor. 

Slavin testified that mats were placed on the floor to address the situation. 

He also stated that the store did not have a regular protocol for inspecting the 

premises to ensure there was no accumulation of water from snow brought into 

the store on shopping carts. Furthermore, the store's porter was not required to 

address such conditions on a regular basis. We are convinced the evidence met 

the requirements for application of the mode-of-operation rule. 

On appeal, defendants argue that the mode-of-operation rule did not apply 

in this case because the rule generally has been confined to dangerous conditions 

arising from the handling of merchandise or the placement of products. 

Defendants note that plaintiff was not injured due to the handling of any 

merchandise or the placement of any product. 

However, in Prioleau, the Court noted that the mode-of-operation rule can 

be applied to a self-service business, when the customer sustains an injury due 

to the manner in which the customer or an employee handles merchandise or 

equipment. Ibid. Here, it is undisputed that the shopping carts were the store's 

equipment, and they were an essential aspect of defendants' self-service business 

model. 
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Moreover, as Slavin explained, it was the supermarket's mode of operation 

to allow the shopping carts to remain outside the store, unprotected from the 

accumulation of snow. The store allowed customers to bring carts laden with 

snow inside, and it did not have a policy for removal of any accumulated snow 

from the carts before customers brought them inside. 

Defendants further argue that the trial judge should not have charged the 

jury on the mode-of-operation because the facts here are similar to the facts in 

Prioleau. In that case, the plaintiff asserted, among other things, that the 

defendant had allowed a dangerous condition to exist in its restaurant, which

was allegedly created when patrons tracked water into the building on a rainy 

evening. Id. at 265. 

The Prioleau Court held that the mode-of-operation rule would not apply 

to such a claim. The Court stated, "The potential for customers to track water 

into a building during inclement weather is not contingent on a defendant's 

business model; that risk exists in virtually any facility that admits patrons from 

public sidewalks or parking areas into its facility." Ibid. In this case, however,

the potential for customers to track snow into the building was contingent upon 

defendant's business model, which involves the use of shopping carts in the 

market's self-service operation.
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III.

Next, defendants argue that the jury's award of damages for pain and

suffering, disability, impairment, and the loss of the enjoyment of life, should 

be set aside on several grounds. Defendants contend plaintiff's attorney made 

improper comments in summation. They also contend the award is grossly 

excessive. 

Defendants argue that in his closing argument, plaintiff's attorney made 

an improper argument regarding the award of damages. Counsel stated that 

"[plaintiff is] going to live about 300,000 hours with [her] injury, millions of 

minutes with this injury." He also stated that

[Y]ou can do the math - - 60 minutes times per hour, 

whatever it is - - it's millions and millions of minutes. 

And I want you to think about that. Not that there's a 

magic to it, because there isn't. But when you're 

thinking about how to possibly compensate her not just 

for the three-and-a-half years she's been suffering up 

until now, but for the 28.5 years or so - - more less, 

whatever you decide, going forward.

Defendants did not object to counsel's remarks when they were made. They first 

raised this issue when they moved for a new trial.

On appeal, defendants argue that plaintiff's counsel made an improper 

argument based on the "Golden Rule." That rule is based on the principle that

"you should do unto others as you would wish them to do unto you[.]" Geler v. 
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Akawie, 358 N.J. Super. 437, 464 (App. Div. 2003). Here, plaintiff's counsel 

did not invoke the rule. Counsel did not ask the jurors to place themselves in 

plaintiff's position or otherwise suggest that the jurors should decide the case 

based on their personal interests or biases. 

Defendants further argue that the evidence presented at trial did not 

support counsel's assertion that plaintiff would experience pain and suffering for 

"millions" of minutes. Defendants contend the evidence showed that plaintiff's 

shoulder injury had essentially resolved, and her knee injury "had progressed 

well." Again, we disagree. 

At trial, plaintiff testified that she experiences pain from her injuries when 

she engages in certain routine activities. Plaintiff stated that since the accident, 

she has had pain at some point every day. Moreover, Nehmer, plaintiff's medical 

expert, testified that plaintiff developed arthritis due to her knee injury, and the 

arthritis is permanent. Nehmer stated that plaintiff's pain will likely increase 

over time. 

In addition, at the charge conference, the parties agreed the plaintiff's life

expectancy is 28.5 years. Thus, the assertion by plaintiff's attorney that plaintiff 

will suffer pain for "millions" of minutes has sufficient support in the evidence.

The comment was not improper. 
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Defendants also contend that plaintiff's counsel's assertions were not a 

proper time-unit argument under Rule 1:7-1(b). The rule provides that "[i]n civil 

cases any party may suggest to the trier of fact, with respect to any element of 

damages, that unliquidated damages be calculated on a time-unit basis without 

reference to a specific sum." Ibid. As noted, plaintiff's counsel stated that the 

jury could calculate damages by reference to units of time; however, counsel did 

not refer to a specific sum. Therefore, the comments were not improper.

In addition, defendants contend the jury's award is grossly excessive. 

Defendants argue that the trial judge should have set aside the award for pain 

and suffering, disability, impairment, and the loss of the enjoyment of life, and 

should have ordered a new trial on damages. Alternatively, defendants contend 

the trial judge should have ordered a remittitur. 

"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)). To 

overcome this presumption, a defendant need establish "clearly and 

convincingly," that the damages award is "a miscarriage of justice." Ibid.

(quoting Baxter, 74 N.J. at 596). 
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"In deciding whether to grant a new trial or remittitur based on a 

purportedly excessive damages award, the court must give 'due regard to the 

opportunity of the jury to pass upon the credibility of the witnesses.'" Ibid.

(quoting Ming Yu He v. Miller, 207 N.J. 230, 248 (2011)). Therefore, a "judge 

may not substitute his [or her] judgment for that of the jury merely because he

[or she] would have reached the opposite conclusion; he [or she] is not a . . . 

decisive juror." Ibid. (quoting Baxter, 74 N.J. at 598).

In this case, the trial judge determined that defendants did not meet the 

standard for a new trial or remittitur. In ruling on defendants' motion, the judge

observed that the accident was "very serious." The judge noted that plaintiff 

testified that when she fell, she experienced excruciating pain. Plaintiff

fractured her kneecap, suffered a break in her shoulder, and required surgery.

The judge observed that plaintiff's shoulder injury has essentially resolved. The 

judge added, however, that plaintiff continued to experience difficulties 

resulting from the injury to her knee.

The judge pointed out that plaintiff testified that she continued to 

experience pain, and it affected her ability to sleep and walk. The judge stated

that at the time of trial, plaintiff was fifty-two years of age, and she had a life 

expectancy of about twenty-nine years. The testimony indicated she will 
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experience pain every single day of her life while awake, and the pain will 

worsen over time, thereby interfering with her ability to walk and to sleep. The 

judge found that the verdict was "very generous" but it did not shock the judicial 

conscience. 

We are convinced the judge's findings are supported by the evidence 

presented at trial. The record supports the judge's determination that defendants

did not meet the standard for a new trial, and there was no basis for setting aside 

the jury's award or for a remittitur. 

IV.

Defendants raise several other arguments with regard to the summation by 

plaintiff's attorney. Defendants contend plaintiff's counsel made improper, 

disparaging comments about defendants' attorney and his summation. 

Defendants first raised this argument on the motion for a new trial. 

"[I]t is improper for an attorney to make derisive statements about parties, 

their counsel, or their witnesses." Szczecina v. PV Holding Corp., 414 N.J. 

Super. 173, 178 (App. Div. 2010). In addition, an attorney "may not use 

disparaging language to discredit the opposing party, or witness, or accuse a 

party's attorney of wanting the jury to evaluate the evidence unfairly, of trying 

to deceive the jury, or of deliberately distorting the evidence." Ibid. (quoting 
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Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J. Super. 154, 171-72 (App. 

Div. 2004)). 

On appeal, defendants contend plaintiff's counsel improperly stated that 

defendants' attorney was "trying to sully up what [the] case" was about by 

referring to "herniated disks" and plaintiff's prior ice skating accident. Plaintiff's 

counsel stated this was "extraneous nonsense." At another point, plaintiff's 

attorney asserted that the case was "getting muddied . . . [and] dirtied up."

Counsel stated that defendants did not want to talk about plaintiff's injuries or 

its negligence because they could not "win." 

We are convinced the comments were not improper and did not deny 

defendants of their right to a fair trial. The comments were primarily addressed 

to the substance of the closing argument of defendants' attorney. They were not

an attempt to disparage defendants' attorney or have the jury unfairly evaluate 

the evidence. Significantly, defendant's attorney did not object to the comments

when they were made. We can therefore assume defendants' counsel did not 

believe the comments were unduly prejudicial. State v. Timmendequas, 161 

N.J. 515, 576 (1999).

Defendants further argue that plaintiff's counsel improperly commented 

on "subsequent remedial repair" of the alleged dangerous condition. The 
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contention lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We

note, however, that Slavin testified that after plaintiff fell, he wiped the floor to 

ensure that no one else fell. Defendants did not object to the introduction of this 

evidence. Thus, the comment by plaintiff's counsel was proper because it was 

based on evidence admitted at trial.

Furthermore, in denying the motion for a new trial, the trial judge found 

that Slavin's testimony was not evidence of a subsequent remedial measure 

under N.J.R.E. 407. Slavin's testimony was essentially a description of the 

condition of the premises at the time plaintiff fell. It was not introduced as 

evidence of a remedial measure, "taken after an event," and it was not presented 

to "prove that the event was caused by negligence or culpable conduct." Ibid.

Affirmed.