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Barber v. Shoprite of Englewood & Associates

March 19, 2009


On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-120-04.

The opinion of the court was delivered by: Parker, J.A.D.



Argued October 28, 2008

Before Judges Wefing, Parker and LeWinn.

Defendant ShopRite of Englewood & Associates, Inc. (ShopRite) appeals from an order entered on August 4, 2006 denying defendant's motion for judgment notwithstanding the verdict (JNOV), or alternatively, for a new trial. The verdict had been rendered by a jury on June 16, 2006, finding defendant negligent and awarding plaintiff $876,000 in damages. After considering defendant's arguments and reviewing the entire record in this matter, including the post-judgment hearing to determine if there was juror misconduct, we reverse and remand for a new trial.


On August 15, 2006, defendant filed its initial notice of appeal from the trial court's order of August 4, 2006. On December 13, 2006, defendant moved before us to supplement the trial record on the basis of an article that appeared in the New Jersey Law Journal (Law Journal) on December 4, 2006. The article was authored by Robert Martin, who served as juror number one and foreperson during the trial. During voir dire, Martin disclosed that he was a New Jersey State Senator, a full-time professor of law and a practicing lawyer. We granted defendant's motion to supplement the record and remanded the matter to the trial court to conduct a hearing and take testimony from Martin and the other jurors with respect to Martin's article.

On January 30, 2007, defendant again moved before us for summary disposition, to supplement the record, and for a temporary remand with instructions to the trial court. This application sought to include in the trial record various newspaper statements attributable to Martin and requested that we vacate the July 18, 2006 judgment based upon inconsistencies between Martin's Law Journal article and his subsequent statements. On February 27, 2007, we denied those applications and instructed the trial court to establish the scope and procedure for the remand hearing.

Prior to the start of the remand hearing, the trial court ordered that the hearing be closed to the press and the public. Counsel on behalf of the media moved to intervene to gain access to the hearing. When the trial court denied that application, the media filed an emergent application with us. After hearing argument, we rendered a decision on May 30, 2007 reversing the trial court and ordering that the hearing be conducted in an open forum with the media exercising its constitutional right to report on it. Barber v. ShopRite of Englewood & Assocs., Inc., 393 N.J. Super. 292 (App. Div. 2007).

The remand hearing was conducted in July 2007, and the trial court rendered a written decision wherein it concluded that there was "no credible evidence of misconduct of any kind." Defendant then moved before us to file a supplemental brief addressing the remand issue. That motion was granted.

In this appeal, defendant argues: (1) juror misconduct and impropriety mandates vacating the verdict; (2) defendant was denied a fair trial because of plaintiff's counsel's "antics" and the court's lack of response thereto; (3) plaintiff failed to prove that a dangerous condition existed and that defendant had notice of such condition; (4) the verdict constitutes a miscarriage of justice; and (5) the trial court erred in denying defendant's JNOV motion by misapplying the law.


The underlying facts relevant to this appeal are as follows. On September 15, 2002, plaintiff Joyce Barber*fn1 was injured when she slipped and fell while looking for pantyhose in aisle five of a supermarket owned by defendant. Plaintiff testified that she did not see anything on the floor before or after she fell, but she noticed that the bottom of her pants were wet after the fall. In her complaint, plaintiff alleged that defendant was negligent in failing to maintain or inspect the premises. The matter proceeded to trial in June 2006.

Plaintiff's counsel began his opening statement by informing the jury that "[w]hen a supermarket fails to properly inspect its shopping aisles and as a result, a shopper is seriously injured, the supermarket is responsible for the harm." Plaintiff's counsel then proceeded to tell the jury plaintiff's "story of what happened in the case."

Defense counsel objected to statements made by plaintiff's counsel in his opening statement. Each time defendant objected, the trial court instructed plaintiff to "move on" and advised defendant that the objections would be heard later.

Defendant first objected to plaintiff's counsel's statements concerning defendant's alleged failure to keep or produce records of its spill inspections. Plaintiff's counsel stated:

[Defendant doesn't] keep any records of when these inspections were done. [Defendant's managers are] relying on their own recollection . . . . [N]either of them can tell us when the last time was that anybody inspected aisle five because there's no records.

Now, the records would have shown us when the inspection was last done, when this walk-through was last done or even whether it had been done at all that day.

We've asked for those records[.]

Plaintiff's counsel further informed the jury that he asked for all of defendant's maintenance records but did not receive the requested materials, implying that defendant withheld records from plaintiff.

Defendant next objected when plaintiff's counsel began telling the jury that plaintiff lost her medical benefits and had to borrow money from her sister to pay for pain management treatment. The court told plaintiff's counsel to "[m]ove on without getting into that." Plaintiff's counsel concluded his opening by stating, "[Y]ou're going to see why the evidence will force me to come back and ask that you return a substantial verdict on [plaintiff's] behalf." (Emphasis added).

Defendant then moved for a mistrial based upon plaintiff's "inflammatory opening statement." Defendant argued that plaintiff improperly framed the opening to suggest that defendant failed to keep records it was obligated to keep and failed to provide them to plaintiff, implying that defendant either "got rid of them" or somehow destroyed "some kind of evidence." Defendant further argued that because plaintiff offered no industry standards on such record keeping, plaintiff's counsel violated the principles of Amaru v. Stratton, 209 N.J. Super. 1, 15-16 (App. Div. 1985) (holding that where a party's opening statement is clearly prejudicial to the opposing party, a motion for a mistrial should be granted).

Defendant also argued that plaintiff misstated the law by suggesting to the jury that defendant had the burden of demonstrating how long something may or may not have been on the floor. Plaintiff implied, moreover, that it was defendant's burden of proof to identify the substance that allegedly caused plaintiff's fall. Defendant further argued that by asking for "a substantial verdict," plaintiff improperly quantified or suggested to the jury the type of verdict they were to return in violation of Botta v. Brunner, 26 N.J. 82, 103 (1958) (holding that suggestions by counsel as to the amount of damages to be awarded "constitute an unwarranted intrusion into the domain of the jury").

The trial court initially remarked that plaintiff's comment about a "substantial verdict" was "getting close to the line." With respect to the records plaintiff claimed had not been produced, the trial court indicated it did not have sufficient information to determine whether a discovery violation had occurred. After reviewing the Botta case, the court denied the mistrial motion, but admonished plaintiff that the "substantial verdict" comment was improper and should not have been made.

When the jurors returned the following day, the court gave a curative instruction:

[T]here are two things that I want to briefly comment on that were raised out of your presence yesterday. And these dealt with comments that were made by the plaintiff's attorney in his opening statement.

Number one, it will be up to you, as it's always up to you, to recall what was said during the course of the trial, but whether it was explicit or implicit, I want to indicate that the burden of proof in this case is on the plaintiff to prove, first of all, that there was a substance on the floor and, secondly, that the defendant knew or should have known about the existence of that substance on the floor before the defendant can be held responsible in this case. That is the law and that is the law that ultimately I will instruct you ... to follow.

To the extent that plaintiff's counsel, in his opening statement, indicated that the defendant had some burden of proof to prove that there was something on the floor, how long it had been there, or what the substance was is not the law in New Jersey.

Secondly, there was a comment towards the end of the plaintiff['s] counsel's opening statement to you in which he asked the jury to return a substantial verdict. The word "substantial" is not a proper comment and I'm instructing you to ignore it. It will be the job of the jury to determine, first of all, if any damages at all are warranted in this case, and that will only occur if you find that the defendant is responsible for the happening of the accident and that the plaintiff's comparative negligence is fifty percent or less in terms of its contributions [to] the happening of the accident.

And then your job is to exercise your sound judgment as to what is fair, just and reasonable under all the circumstances. And it's impermissible for counsel to suggest that a substantial award should be returned or that any award should be returned other than a fair and just and reasonable award under the circumstances.

Plaintiff began her case by showing a videotape of her lying on the floor after her fall. There was no testimony about the videotape and the only information provided to the jury about the tape was a brief reference to it in plaintiff's opening statement and then in summation when plaintiff's counsel stated:

We played this videotape.

You have the tape. Please feel free to look at it and tell me -- just ask yourselves whether that's credible.

I know there's a videotape of aisle five and I've been back to where the video is kept, in that back room . . . . I know that's where all the tapes are kept and that's where all the different locations in the store are filmed. I can go back there and I can look at the videotape. It'll probably even show me when she actually fell. I'll be able to see what -- how she fell, where her legs went, if her legs really did slip out from underneath her. And I could look at this, even if I go back a little further, I can probably even see who was the last one to do an inspection. And I'll look at all this before anybody has a chance to erase that tape. No. No, I'm not going to do that. Credibility. It's a key in this case.

As plaintiff's case progressed, she called Russell Tyndall, a ShopRite field merchandiser responsible for inspecting a group of ShopRite stores, including the store in which plaintiff fell. He testified that he was at the store on the day of the accident. When questioned as to the store's inspection procedures, Tyndall testified that field merchandisers and store managers conduct walk-through inspections at the store ...

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