SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4172-15T1

PATRICIA K. RIEGER and

ERIC RIEGER,

Plaintiffs-Appellants,

v.

ANN, INC. d/b/a LOFT,

Defendant-Respondent.

________________________________

Argued September 25, 2017 – Decided

Before Judges Sabatino and Rose.

On appeal from Superior Court of New Jersey, 

Law Division, Gloucester County, Docket No. 

L-0557-14.

Devesh Taskar argued the cause for appellants 

(Law Offices of Robert I. Segal, attorneys; 

Maria Detitto, on the brief).

Jaunice M. Canning argued the cause for 

respondent (Law Offices of William E. Staehle, 

attorneys; Ms. Canning, 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NOT FOR PUBLICATION WITHOUT THE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.

October 12, 2017
2 A-4172-15T1

Plaintiff Patricia K. Reiger1 appeals from the trial court's 

order granting summary judgment to defendant Ann, Inc. d/b/a Loft 

in this negligence action. We affirm. 

I.

We recite the key facts from the summary judgment record. In 

so doing, we view all facts in a light most favorable to plaintiff. 

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014). 

On May 15, 2013, plaintiff was shopping at defendant's retail 

store in Marlton. While trying on a scarf in the common dressing 

area of the store, and backing away from a mirror, plaintiff 

tripped and fell over a platform behind her that caused a mannequin 

displayed on the platform to strike plaintiff, injuring her 

shoulder and elbow.

The store's manager, Marisa Fiorentino, testified at her 

deposition that the platform was rectangular, approximately five 

inches high, and large enough to hold two mannequins. Fiorentino 

drew a diagram depicting the platform and location of the fullydressed mannequins, each of which was taller than five feet, five 

inches. A clothing bar was located on each side of the platform 

display, creating a "store set" from which Fiorentino hung 

 

1 Since Eric Reiger is a co-plaintiff in this case only because of 

his per quod claim deriving from his spouse's injury, references 

to "plaintiff" pertain solely to Patricia K. Reiger.
3 A-4172-15T1

merchandise that was not readily selling in the store area. A 

three-way mirror was located just across from the platform display. 

Shelves containing scarves were located on each side of the mirror. 

Private dressing rooms were located on the left and right sides 

within the common dressing area.

Plaintiff testified at her deposition that she did not notice 

the platform display when she entered the dressing area. At some 

point thereafter,2 plaintiff tried on a scarf, viewed herself in 

the three-way mirror, but did not see the platform display behind 

her in the mirror. While observing her image in the mirror, 

plaintiff took a step back for a better view. One of her heels 

hit the platform, causing one of the mannequins to fall on her. 

There were no eyewitnesses.

Defendant retained John S. Posusney, P.E., an engineering 

expert who conducted a site inspection. Defendant served plaintiff 

with Posusney's report in which he opined "[plaintiff's] incident 

was caused by her failure to maintain a proper lookout in the 

direction that she was moving before she fell." Posusney found 

the aisle accessway between the mirror and the platform exceeded 

the requirements of the applicable building code, and plaintiff's 

incident was not caused by a defective condition. Plaintiff 

 

2 Plaintiff was not asked how long she was in the dressing area 

prior to her fall. 
4 A-4172-15T1

retained an engineering expert who conducted a site inspection. 

For reasons not disclosed to the court, plaintiff did not produce 

in discovery a report by her expert. 

The motion judge granted summary judgment to defendant,

concluding plaintiff failed to demonstrate defendant's placement 

of the platform display in the dressing area breached a standard 

of care that created a dangerous condition. Specifically, the 

judge's decision was based on plaintiff's failure to establish, 

through expert engineering testimony, that there was insufficient 

space between the platform display and the mirror, or through a 

"human factors" witness that defendant's positioning of the 

platform display created a "trap" such that plaintiff's focus was 

on her image in the mirror, and that she would be inclined to back 

up and trip over the platform. 

Plaintiff now appeals. She contends the court erred in its 

decision because she does not claim defendant violated a building 

or other code. Rather, plaintiff contends the platform display 

constituted a dangerous condition, and a liability expert is not 

necessary for a jury to decide whether defendant breached a duty 

of care, or that her injuries were a foreseeable result of 

defendant's conduct. In this regard, plaintiff emphasizes

Fiorentino's acknowledgment that customers often step back while 

viewing themselves in the three-way mirror. 
5 A-4172-15T1

We review a grant of summary judgment de novo, observing the 

same standard as the trial court. Townsend v. Pierre, 221 N.J.

36, 59 (2015). Summary judgment should be granted only if the 

record demonstrates there is "no genuine issue as to any material 

fact challenged and that the moving party is entitled to a judgment 

or order as a matter of law." R. 4:46-2(c). In determining 

whether a summary judgment motion was properly granted, we review 

the evidence, drawing "all legitimate inferences from the facts 

in favor of the non-moving party." Globe Motor Co. v. Igdalev, 

225 N.J. 469, 480 (2016) (citing R. 4:46-2(c)). If no genuine 

issue of material fact exists, the inquiry then turns to "whether 

the trial court correctly interpreted the law." DepoLink Court 

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 

333 (App. Div. 2013) (citations omitted). We review issues of law 

de novo and accord no deference to the trial judge's legal

conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). 

Applying these standards, we discern no reason to reverse the 

grant of summary judgment.

The elements of a negligence cause of action are well-settled. 

"To sustain a cause of action for negligence, a plaintiff must 

establish four elements: '(1) a duty of care, (2) a breach of that 

duty, (3) proximate cause, and (4) actual damages.'" Townsend, 

supra, 221 N.J. at 51 (quoting Polzo v. Cnty of Essex, 196 N.J.
6 A-4172-15T1

569, 584 (2008)). However, "[n]egligence is a fact which must be 

shown and which will not be presumed." Long v. Landy, 35 N.J. 44, 

54 (1961). "[T]he mere showing of an accident causing the injuries 

sued upon is not alone sufficient to authorize an inference of 

negligence." Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139-40 

(1951). 

Here, the court granted defendant's summary judgment motion 

primarily because plaintiff did not present sufficient evidence 

to sustain her burden of proving defendant breached a duty of 

care. We therefore focus on that element of plaintiff's negligence 

claim.

"It is well recognized that the common law imposes a duty of 

care on business owners to maintain a safe premises for their 

business invitees because the law recognizes that an owner is in 

the best position to prevent harm." Stelluti v. Casapenn Enters., 

LLC, 203 N.J. 286, 306 (2010). A proprietor's 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 condition, 

and to avoid creating conditions that would render the premises 

unsafe." Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 

(2003). "[T]he business entity will not be held liable for injuries 

sustained 'so long as [the business] has acted in accordance with 
7 A-4172-15T1

the ordinary duty owed to business invitees, including exercise 

of care commensurate with the nature of the risk, foreseeability 

of injury, and fairness in the circumstances.'" Stelluti, supra,

203 N.J. at 307 (quoting Hojnowski v. Vans Skate Park, 187 N.J.

323, 340-41 (2006)) (alteration in original).

In many instances, a "plaintiff is not required to establish 

the applicable standard of care" in a negligence case. Davis, 

supra, 219 N.J. at 406 (2014). The plaintiff ordinarily need only 

"show what the defendant did and what the circumstances were," and 

the jury is competent to supply the applicable standard of care 

by "determin[ing] what precautions a reasonably prudent [person] 

in the position of the defendant would have taken." Sanzari v. 

Rosenfeld, 34 N.J. 128, 134 (1961); see also Davis, supra, 219 

N.J. at 406-07. In such non-technical cases, "a layperson's common 

knowledge" permits the "jury to find that the duty of care has 

been breached without the aid of an expert's opinion." Giantonnio 

v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996); see also

Davis, supra, 219 N.J. at 407.

Where, however, a jury lacks the competence to supply the 

applicable standard of care, the plaintiff must establish "the 

requisite standard" and the defendant's deviation from it by 

"present[ing] reliable expert testimony on the subject." Davis, 

supra, 219 N.J. at 407 (quoting Giantonnio, supra, 291 N.J. Super.
8 A-4172-15T1

at 42). In determining whether expert testimony is required, "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.'" Ibid. (quoting Butler v. Acme Mkts., Inc., 89 

N.J. 270, 283 (1982) (alteration in original)).

On defendant's motion for summary judgment here, the court

correctly applied these principles and determined plaintiff had 

not produced an expert to explain that defendant violated a 

standard of care in its placement of the platform display in 

proximity to the three-way mirror. We agree. Here, it is 

undisputed that defendant's placement of the platform display did 

not violate any building code. Indeed, defendant's expert opined 

the accessway where plaintiff fell exceeded the municipal code 

requirements. 

We also find unpersuasive plaintiff's contention that, in 

this particular setting, the jury is competent, without expert 

testimony, to supply the applicable standard of care based solely 

on the testimony in the record. Although Fiorentino testified 

that customers generally back up when viewing themselves in a 

three-way mirror, we concur with the trial judge that expert 

testimony is necessary to establish that placement of the platform 

display violated pertinent standards of care to create a tripping 
9 A-4172-15T1

hazard. The platform display was not camouflaged nor protruding 

into the accessway. Rather, the fully-dressed, life-sized 

mannequins were part of a store set, from which customers could 

obtain merchandise, in an open area of the common dressing area. 

Although plaintiff's act of falling, itself, was not "esoteric," 

the customs and standards for retail store displays and safe 

clearance conditions are not part of jurors' common knowledge. 

Compare Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (expert 

not required to establish dangerous condition of camouflaged 

step); Campbell v. Hastings, 348 N.J. Super. 264, 270-71 (App. 

Div. 2002) (expert not required to establish danger of unlit sunken 

foyer); Berger v. Shapiro, 30 N.J. 89, 101-02 (1959) (expert not 

required to explain dangerous condition caused by missing brick 

in top step of porch).

Even affording plaintiff, as we must, all reasonable 

inferences from the factual record, there is an insufficient 

evidential basis here to conclude that defendant acted

unreasonably in its placement of the platform, without the aid of 

expert testimony, to establish that an accepted standard of care 

was violated. 

Having determined that defendant did not owe plaintiff a duty 

of care, we need not reach plaintiff's argument that defendant is 

liable pursuant to a distracted invitee theory. Model Jury Charge 
10 A-4172-15T1

(Civil), 5.20F(12)(c), "Duty Owed - Condition of Premises, 

Distraction or Forgetfulness of Invitee" (2017). We agree with 

the trial court that the distraction of invitee jury charge is 

available only if the jury first determines "defendant was 

negligent in permitting the condition to exist." Id. As we have 

explained above, however, in the absence of expert testimony

articulating a standard of care, the jury cannot make that 

determination here.3 

Affirmed.

 

3 Nor are we persuaded that defendant was liable under the modeof-operation doctrine inasmuch as notice is not at issue in this 

case, Wollerman v. Grand Union Stores, 47 N.J. 426, 429-30 (1966), 

and plaintiff took the scarf from one of the shelving bins next 

to the three-way mirror, not off of the mannequin that fell on 

her, Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 260 

(2015). There is an insufficient nexus between plaintiff's selfservice removal of the scarf from the bin and her subsequent act 

of bumping into the platform display. See Arroyo v. Durling

Realty, LLC, 433 N.J. Super. 238, 248 (App. Div. 2013) (regarding 

lack of the required nexus).